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Friday, February 5, 2016

The Illinois Board of Elections Got It Wrong: Ted Cruz Is Not a Natural Born Citizen



The Illinois Board of Elections Got It Wrong:  Ted Cruz Is Not a Natural Born Citizen

By Mario Apuzzo, Esq.
February 5, 2016


Image result for image ted cruz born in canadaThe Illinois Board of Elections recently found that Presidential contender, Senator Ted Cruz, is an Article II “natural born citizen.”   http://www.huffingtonpost.com/entry/ted-cruz-natural-born-illinois_us_56b10542e4b0a1b96203f393 .  Lawrence Joyce and William Graham objected to Cruz being placed on the presidential primary ballot in Illinois, contending that he is not an Article II natural born citizen.  The Board rejected the challenge and found that Cruz “is a natural born citizen by virtue of being born in Canada to his mother who was a U.S. citizen at the time of his birth." The Board so found because it said he "did not have to take any steps or go through a naturalization process at some point after birth."  The Board also had the audacity to cavalierly state:  “Further discussion on this issue is unnecessary." The Board erred.  The Board’s ruling is an expression of Congressional Research Service attorney Jack Maskell’s baseless thesis of his definition of a natural born citizen.  Not only is Maskell’s definition a fabricated and revisionist definition of a natural born citizen, it also is nonsensical.   See Mario Apuzzo, The Fallacies of Congressional Legislative Attorney Jack Maskell’s Definition of a “Natural Born Citizen,” http://puzo1.blogspot.com/2013/06/the-fallacies-of-congressional.html (June 2, 2013) (demonstrates how Maskell’s thesis is erroneous); Mario Apuzzo, The Constitution, the Rule of Law, and the “Natural Born Citizen” Clause:  A Response to Artsy Fartsy Squeeky Fromm Girl Reporter, http://puzo1.blogspot.com/2013/07/the-constitution-rule-of-law-and.html  (July 19, 2013) (same). 

I.  CONSTITUTIONAL CONSTRUCTION

Let us begin with a brief textual and structural analysis of Article I and II.  Article I, Section 2 (applicable to Representatives) and Section 3 (applicable to Senators) allows Representatives and Senators to be just “citizen” of the United States for a minimum of seven and nine years, respectively, to be eligible for those offices.  It does not require that they be “natural born citizens” of the United States.  In contrast, Article II, Section 1, Clause 5 of the Constitution says:  "No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any person be eligible to that office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States."  We have to consider that the House and Senate are collegial bodies which act as bodies of many individuals and not by the decision of just one individual.  In contrast, the Office of President and Commander is singular.  The Framers required future Presidents and Commanders to be natural born citizens so as to provide a “strong check”[1] against foreign and monarchical influence infecting the Office of President and Commander in Chief.  We can only conclude from Article I and II that the Framers did not believe that being a citizen provided a strong enough check against that pernicious monarchical and foreign influence affecting the one person upon whom the great and singular civil and military powers of the President and Commander devolve.  Rather, being a natural born citizen did.  So, being a citizen of the United States today is not sufficient to be eligible to be President.  For those born after the adoption of the Constitution, if one is a “citizen” of the United States but not also a “natural born citizen” of the United States, then one is prohibited from being President.  The Twelfth Amendment requires that also the Vice-President be a natural born citizen. 

As we can plainly see from the text of Article II, today, if one wants to be President, one must demonstrate that one is a “natural born citizen” of the United States, not just a “citizen” of the United States.  The text also does not say “citizen” of the United States at birth.  As I will demonstrate, there is a critical constitutional difference between these two types of U.S. citizenships and that only a natural born citizen of the United States is eligible to be President.  I will show that Ted Cruz might be a citizen of the United States at birth.  But having acquired that at birth status by naturalization and not by birth alone, he is not nor can he be a natural born citizen.  That Cruz did not have to go through any naturalization process after his birth, assuming that to be true, does not nor can it erase the fact that he was by law naturalized at birth by Congress through its naturalization Act applicable to Cruz when he was born in 1970.  Needing Congress to naturalize him at birth, Cruz is not nor can he be an Article II natural born citizen. 

We have seen that the text and structure of Article II, Section 1, Clause 5 reveals that the Framers made a critical constitutional distinction between a “citizen” and “natural born citizen.”   The only possible explanation for the Framers using these two clauses as they did is that a citizen of the United States who was born after the adoption of the Constitution and who was not eligible to be President was a citizen of the United States, but not a natural born citizen.  Not being a natural born citizen, that citizen could only be a naturalized citizen.  So, what made that person a naturalized citizen was the simple fact that he or she was not a natural born citizen.  And what made that person not a natural born citizen was the fact that he or she did not satisfy the definition of a natural born citizen.  So what is a natural born citizen as opposed to just a citizen?   

The Constitution does not define a natural born citizen.  Hence, it is not the Constitution that created the meaning of a natural born citizen.  The definition of a natural born citizen already existed when the Framers drafted and adopted the Constitution and when it was ratified.  It also existed before Congress passed its first naturalization Act in 1790.  Since the meaning of the clause already existed prior to the drafting and ratification of the Constitution and prior to any naturalization Act, that definition did not nor could it draw its source from the Constitution or any Act of Congress.  That definition could only come from some source other than the Constitution or an Act of Congress.  The historical and legal record demonstrates that that source was the law of nations, whose citizenship principles were incorporated into American national common law and the naturalization Acts of Congress, and not the English common law.   

II.  THE ORIGINAL CITIZENS

Before we consider the meaning of a natural born citizen, let first examine who the original citizens of the United States were.  Simply, the original citizens were those people who associated together and adhered to the American Revolution.  They were made a citizen of the free and independent state which they inhabited by the force of the Declaration of Independence and the Revolution.  Upon ratification of the Constitution, they became the first citizens of the United States.  These original citizens included the Founder and Framers and also most of the early Presidents.  Article II grandfathered the original citizens of the United States to be eligible to be President. 

III.  THE NATURAL BORN CITIZENS

Having examined who the original citizens were, now let us examine who the natural born citizens were.  Our U.S. Supreme Court has long confirmed that the birth circumstances that make one a natural born citizen are birth in the United States to U.S. citizen parents (meaning U.S. citizen father and mother).  Under the common law the nomenclature with which the Framers were familiar when they drafted and adopted the Constitution, all children born in a country to parents who were its citizens were “natives, or natural-born citizens,” and all the rest of the people were “aliens or foreigners,” who could be naturalized by some law.  See Emer de Vattel, The Law of Nations, or Principles of the Laws of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns, bk. 1, c. 19, sec. 212 Citizens and natives (London 1797) (1st ed. Neuchatel 1758) ("The citizens are the members of the civil society: bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens"); Minor v. Happersett, 88 U.S. 162, 167 (1875) (“The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners,” which is a paraphrase of Vattel’s law of nation’s definition of “natives, or natural-born citizens”); as to a natural born citizen, accord U.S. v. Wong Kim Ark, 169 U.S. 649, 665 (1898), citing Minor and quoting without criticism its common law definition of a natural born citizen and citing an quoting Horace Binney, Alienigenae of the United States, p. 22, note (2nd ed., Philadelphia, Dec. 1, 1853) ("The child of an alien, if born in the country, is as much a citizen as the natural born child of a citizen, and by operation of the same principle," meaning birth in the country, and thereby distinguishing a Fourteenth Amendment “citizen” of the United States “at birth” from an Article II “natural born citizen” of the United States).

So, a natural born citizen was defined under the common law, which was American common law and not English common law, and not by any naturalization Act of Parliament or Congress.  While an Act of Congress did not created the definition of a natural born citizen, examining what our early Congress did in the area of naturalization provides valuable insight into the definition of a natural born citizen and confirms that the Framers got their definition of a natural born citizen from the law of nations and not the English common or statutory law.  As we have seen, a natural born citizen is not a naturalized citizen.  It would be absurd to contend that a “naturalized” citizen is a “natural born” citizen, as absurd as saying that one’s adopted child (so created by positive law) is one’s natural child (so recognized only by his or her birth circumstances).  So anything that could be said about a naturalized citizen does not nor could it change the meaning of a natural born citizen.  If anything, knowing what a naturalized citizen is confirms what a natural born citizen is and what it is not.  Who the Framers viewed to need naturalization confirms who they held to be the natural born citizens.  As we shall see, the only person who the Framers viewed as not needing any form of naturalization was a child born in the United States to parents who were U.S. citizens at the time of the child’s birth.  These children were the “natives, or natural-born citizens.”  Minor v. Happersett (1875).  Since under the common law doctrine of coverture both parents were either citizens or aliens, “parents” could only mean a father and mother who were both U.S. citizens.  Also, at common law “children” meant legitimate children.  So the Framers in the end required that both the married father and mother be U.S. citizens at the time of their child’s birth in the United States in order for their child to be a natural born citizen.  If a child was born to an alien father, that meant that he or she was born to a father and mother who were both aliens which in such case the minor child, under the naturalization Acts of Congress then to be in effect, would have needed to naturalize after birth either derivatively once the parents naturalized or on his or her own upon reaching the age of majority. 

IV.  THE NATURALIZATION ACTS OF CONGRESS

Let us now examine the early naturalization Acts of Congress.  Under the common law that had prevailed in the colonies and which continued to prevail in the new states, aliens could not inherit property.  Additionally, a number of children of U.S. citizens were born out of the United States during the American Revolution.  Hence, the Americans followed the English model and passed the Naturalization Act of 1790 (1 Stat. 103), which is our nation's first naturalization Act.  These naturalization Acts did not change the common law.  Rather, they abrogated it to the extent that they could constitutionally.  In Great Britain, Parliament had no constitutional constraints as it was and continues to be supreme.  But in the United States, Congress could only exercise those limited powers given to it by the Constitution.[2]  As its title and stated purpose, “An Act to establish an uniform Rule of Naturalization,” clearly and plainly proclaimed, this Act was no more than a naturalization Act passed by the First Congress under its Article I, Section 8, Clause 4 naturalization powers "[t]o establish an uniform Rule of Naturalization . . . throughout the United States." The First Congress, which contained many Founders and Framers, including then-Representative James Madison, saw the need to naturalize children born out of the United States to U.S. citizen parents.  If it did not see that need, there is no reason why it would have passed any naturalization statute which reached those children.  This would be consistent with Congress not passing any naturalization statute reaching children born in the United States to U.S. citizen parents who we shall see were the natural born citizens and not in need of any naturalization.  To naturalize children born out of the United States to U.S. citizen parents, children who were aliens under the common law, the First Congress, with the approval of President George Washington, passed the Naturalization Act of 1790.  There it said that those children "shall be considered as natural born citizens."  While these children were born to a father and mother who were U.S. citizens, they were not born in the United States.  They therefore could not be natural born citizens.  But Congress sought to make them citizens of the United States and said that they shall enjoy the same privileges, immunities, and rights as the natural born citizens, provided that their U.S. citizen fathers had been residents in the United States prior to the child’s birth.  With these children not being natural born citizens, the privileges, immunities, and rights that Congress gave to them did not nor could it include the privilege of being elected President.

But the Constitution gives to Congress in matters of citizenship only the power to make uniform the rules of naturalization.  Since in such matters, the Constitution gives Congress only power over naturalization and naturalization does not reach nor can it reach the meaning of a natural born citizen, Congress has no power to change the meaning of a natural born citizen.  If Congress wants to change that definition, it must do so through a duly ratified constitutional amendment.  This means that Congress cannot through any of its naturalization Acts add or subtract to the class of natural born citizens by either expanding or limiting the definition of the clause by including less or more birth circumstances.   

By attempting in its 1790 Act to declare persons born out of the United States to “be considered as natural born citizens,” Congress exceeded those powers and passed what could be ruled to be an unconstitutional Act.  Consider that in Marbury v. Madison, 5 U.S. 137 (1803), the U.S. Supreme Court ruled that Congress’s Judiciary Act of 1789 was unconstitutional in how it gave to the Supreme Court original jurisdiction over a mandamus action.  Hence, Congress could also have acted illegally in giving to itself powers to define a natural born citizen which it did not have under the Constitution.  Another problem with the Naturalization Act of 1790 was that, if Congress did not intend to expand who could be a natural born citizen, it nevertheless created confusion as to whether children born out of the United States to U.S. citizen parents were under the Constitution eligible to be President since the statute did say that children born out of the United States to U.S. citizens “shall be considered as natural born citizens.” Probably to avoid any constitutional problem and to make matters clear, the Third Congress in 1795, with the leadership of then-Representative James Madison and with the approval of President George Washington, through the Naturalization Act of 1795, repealed the Act of 1790, and changed "shall be considered as natural born citizens" to "shall be considered as citizens of the United States." Clearly, President Washington and early Congress, which included Madison and other Founders and Framers, informed that there was to be no confusion or doubt that those children were not natural born citizens.  In fact, through the surgical language change, they told us that they were citizens of the United States, but not natural born citizens. 

So after repealing that Act and replacing it with the Naturalization Act of 1795, in the latter Act, rather than using the same words “shall be considered as natural born citizens,” Congress replaced them with “shall be considered as citizens of the United States.”  Defining the citizens of the United States through its naturalization powers was perfectly acceptable under the Constitution and except when it referred to who shall be considered as natural born citizens, that is what the 1790 Act had done.  Clearly such exercise of power fell under Congress’s power to establish a uniform the rule of naturalization throughout the United States and the exercise of that power did not fall upon the natural born citizens, but rather upon persons who were otherwise aliens and who the nation through Congress adopted as citizens of the United States.  In fact, the 1790 Act was the first and last time that Congress ever in any naturalization Act mentioned the natural born citizens.  Starting with the 1795 Act and continuing to the present naturalization Acts, Congress never again referred to the natural born citizens. 

Congress, to the present day, has never again in any of its naturalization Acts referred to children born out of the United States to one of two U.S. citizen parents in any way as natural born citizens.  Congress has therefore, if not already in 1790 then since 1795, made it abundantly clear that such children are citizens of the United States at birth, but not natural born citizens.  This demonstrates that reliance upon the Naturalization Act of 1790 to make someone a natural born citizen is misplaced. 

The law that applies in determining whether someone born outside of the U.S. is a citizen of the U.S. is very complex.  It has continuously changed since the First Congress passed our nation's first naturalization Act, that of 1790. The law that was in effect when the child was born is the law that controls. Generally, the changes have focused on whether the child was born to one or two U.S. citizen parents, whether the citizen parent was the father or mother (the 1790, 1795, 1802, 1804 Acts required U.S. citizen parents and the 1855 Act referred to U.S. citizen fathers only), whether the citizen father resided in the United States (started as early as 1790), whether the child was born in wedlock or out of it (started in 1940), and whether the child came back to the U.S. and started to reside (started May 24, 1934) or later at least be physically present (started in 1952).  Congress’s conditions for being accepted as a citizen of the U.S. at birth are called condition precedent or condition subsequent. 

As stated, Congress's naturalization Acts did not permit a child born out of the U.S. prior to May 24, 1934 to a U.S. citizen mother and an alien father to acquire U.S. citizenship at birth.  Starting on that date, children born out of the U.S. to U.S. citizen mothers and alien fathers, satisfying all conditions precedent and subsequent, were adopted under the naturalization Acts of Congress as citizens of the U.S. at birth and remained so. Hence, if Cruz was born on May 24, 1934 to a U.S. citizen mother and an alien father, satisfying all conditions precedent and subsequent, he would have been under an Act of Congress a citizen of the U.S. at birth and remained one.  This is not to say that he was a natural born citizen under the Constitution, who needs no such naturalization Act of Congress to be recognized as a citizen of the U.S. at birth. 

It is telling to consider in this connection that the 1934 Act imposed for the first time retention requirements (condition subsequent) if the parents were not both U.S. citizens.  In such case, the child had to continuously reside in the U.S. for at least five years immediately before turning 18 years of age and take the oath of allegiance within six months after turning 21.  The 1952 Act continued this retention requirement, although it changed it from residency to continuous physical presence.  That Act required the child to be continuously physically present in the U.S. for at least five years between the ages of 14 and 28. Later statutes liberalized the retention requirement until it was totally removed by the more modern naturalization statutes.  This meant that a child could be born a citizen of the U.S. but then lose that citizenship if he or she did not satisfy that subsequent residency or physical presence requirement. 

Cruz says that he is a natural born citizen because he was born a citizen under the 1952 Act.  Imagine if he did not move to the U.S. at age 4 as he did, thereby satisfying the retention residency requirement.  In default thereof, he would have lost U.S. citizenship with which he was born in 1970.  See Bellei v. Rogers, 401 U.S. 815 (1971) (§ 301(b) of the Immigration and Nationality Act of 1952, which provides that one who acquires United States citizenship by virtue of having been born abroad to parents, one of whom is an American citizen, who has met certain residence requirements, shall lose his citizenship unless he resides in this country continuously for five years between the ages of 14 and 28 is constitutional).  Now ask yourself how could a natural born citizen lose his or her citizenship by not residing in the U.S. for a certain period of his or her life?  The question is pregnant with the answer.  Congress simply does not have the power to take away a natural born citizen's citizenship in such a fashion.  This alone proves that the U.S. through a naturalization Act of Congress adopted Cruz as a naturalized citizen of the U.S. at birth and that he is not a natural born citizen.  

So, we have seen that Congress has as early as 1790 passed naturalization Acts naturalizing people who were not natural born citizens under the common law (either not born to U.S. citizen parents or not born in the United States or both). Congress adopted these persons as citizens of the United States, either at birth or after birth. If they were born out of the United States to U.S. citizen parents, they were adopted as citizens of the United States at birth. If they were born in or out of the United States to alien parents, they could naturalize after birth. 

V.  THE CIVIL RIGHTS ACT OF 1866

In 1868 Congress passed the Civil Rights Act of 1866 which provided in pertinent part that all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, were “citizens” of the United States. This statute increased the citizens of the United States only for free blacks whose ancestors had been slaves. These free blacks were born in the United States. Their ancestors had long lost allegiance to any foreign power. Hence, their children were born not subject to any foreign power. Their parents were not viewed as aliens. Their children born to them in the United States qualified to be citizens of the United States under the statute.

VI.  THE FOURTEENTH AMENDMENT

The Fourteenth Amendment was ratified in 1868. It provided that all persons born in the United States and “subject to the jurisdiction thereof” are “citizens” of the United States. U.S. v. Wong Kim Ark (1898) held that such persons are “citizens” of the United States from the moment of birth and included children born in the United States to alien parents who were domiciled and permanently residing in the United States and neither foreign diplomats nor military invaders. As we can see, the Amendment caused expansion of U.S. citizenship to children born in the United States to alien parents. But these new citizens were not natural born citizens under the common law.

A natural born citizen is a citizen of the United States “by birth” alone and necessarily becomes a citizen “at birth.”   So, he or she is a citizen “at birth” due to his or her birth circumstances and nothing more like a positive law.  In other words, it is the birth circumstances alone that make one a natural born citizen, not the fact that one became a citizen at birth, which is only a necessary consequent (but not a sufficient condition) of being a natural born citizen and which can occur due to the force of the operation of law.    Congressional Research Attorney, Jack Yet, Maskell, maintains that all persons who are citizens “at birth” or “by birth,” regardless of where born, to whom born, or by what means the status was acquired, are natural born citizens.  There is no historical or legal evidence for Maskell’s thesis.  On the contrary, what our U.S. Supreme Court has explained about who is a citizen by mere birth and who is a naturalized citizen demonstrates Maskell’s thesis to be erroneous.

Saying that someone is a citizen “at birth” or “by birth” does not define a natural born citizen, for the expression is devoid of the birth circumstances which make one a citizen at birth or by birth.  The definition of a natural born citizen needs birth circumstances.  As we have seen, those circumstances are birth in the United States to U.S. citizen parents.

The fact that one became a citizen at birth does not mean that one became such a citizen by the mere act of birth and therefore is a natural born citizen.  It also does not mean that one is necessarily not naturalized and therefore a natural born citizen.  U.S. v. Wong Kim Ark (1898) explained: 

The Fourteenth Amendment of the Constitution, in the declaration that

all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside,

contemplates two sources of citizenship, and two only: birth and naturalization. Citizenship by naturalization can only be acquired by naturalization under the authority and in the forms of law. But citizenship by birth is established by the mere fact of birth under the circumstances defined in the Constitution. Every person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization. A person born out of the jurisdiction of the United States can only become a citizen by being naturalized, either by treaty, as in the case [p703] of the annexation of foreign territory, or by authority of Congress, exercised either by declaring certain classes of persons to be citizens, as in the enactments conferring citizenship upon foreign-born children of citizens, or by enabling foreigners individually to become citizens by proceedings in the judicial tribunals, as in the ordinary provisions of the naturalization acts.

Wong Kim Ark, at 702-03. 

Wong Kim Ark explained that there are only two sources of citizenship, by birth or by naturalization.  Citizenship by birth is established by the mere fact of birth under the circumstances specified in the common law that was incorporated into the Constitution or under circumstances as specified in the Fourteenth Amendment.  Every person born in the United States to citizen parents (the common law requirement) and every person born in the United States and subject to the jurisdiction thereof (the Fourteenth Amendment requirement), becomes at once a citizen of the United States, and needs no naturalization after birth. The former is a “natural born citizen” of the United States under the common law (Minor v. Happersett (1875)) and the latter is a “citizen” of the United States at birth by virtue of the Fourteenth Amendment.  Wong Kim Ark.    As we can see from Wong Kim Ark, a person born out of the territory and jurisdiction of the United States cannot become a citizen of the United States by the mere fact of birth under the birth circumstances specified in the common law or the Fourteenth Amendment.  Rather, such a person can only become a citizen of the United States by naturalization, i.e., either by the birth circumstances specified in an Act of Congress declaring children born out of the territory and jurisdiction of the United States to U.S. citizen parents to be citizens of the United States at birth or allowing persons born out of the United States to alien parents to become citizens of the United States after birth, or by treaty declaring persons born out of the United States to alien parents to be citizens of the United States after birth (applicable in the case of the annexation of foreign territory or to American Indians in the past).  

Furthermore, Wong Kim Ark commented on both those born in the United States who become citizens of the United States at birth and those born out of the United States who also become citizens of the United States at birth.  It explained that the former are made citizens automatically at birth by virtue of the common law or of the Fourteenth Amendment.  It added that those children did not need naturalization by Congress, either at birth or after birth.  It also said that while the latter are also made citizens at birth, because a naturalization Act of Congress was the means by which that status was acquired, that child was a naturalized citizen.  Hence, even though the child became a citizen of the United States automatically at birth and did not need to go through any naturalization process after birth to be adopted a citizen of the United States, the Court still held that child to be naturalized albeit at birth.  So, what the Court looked to for determining if the child was a naturalized citizen was not whether the child had to go through any naturalization process after birth in order to be a citizen, but rather whether it was an Act of Congress that made that child a citizen of the United States at birth.  The fact that the child became a citizen of the United States at birth did not mean that the child was not naturalized.  Only if the child became a citizen at birth by virtue of either the common law or the Fourteenth Amendment was the child not naturalized by an Act of Congress.  If the child obtained his or her at birth status by virtue of a naturalization Act of Congress, then the child was naturalized, even if the child did not have to complete any other naturalization process after birth.  In other words, that child needing a naturalization Act of Congress to be a citizen of the United States at birth was naturalized at birth by that very Act. 

Wong Kim Ark demonstrates that simply being a citizen of the United States at birth does not mean that it was birth alone that gave that child the right to be a citizen at birth.  In the case of children born out of the territory and jurisdiction of the United States, it is a naturalization Act of Congress that confers that right, not the mere fact of birth.  It also shows that simply being a citizen of the United States at birth does not mean that one was not naturalized.  This means that being a citizen of the United State at birth does not necessarily mean that one is a natural born citizen, for that child can still be a naturalized citizen which is not nor can such a citizen be a natural born citizen.    

So being a citizen by birth with no need to rely upon a naturalization Act of Congress is reserved only to those who are born under circumstances prescribed by the Constitution.  If one satisfies the circumstances prescribed by the common law, one is a natural born citizen.  If one satisfies the circumstances prescribed by the Fourteenth Amendment, one is a citizen of the United States at birth which is not the equivalent of a natural born citizen.  The status of being a citizen of the United States at birth is available to natural born citizens and citizens of the United States at birth under the Fourteenth Amendment or Act of Congress.  But being a citizen at birth does not mean one was not naturalized, for of all the citizens at birth only those who are born in the territory and jurisdiction of the United States are not naturalized by an Act of Congress.    

VII.  CHILDREN BORN ABROAD TO DIPLOMATS OR IN THE ARMIES OF THE STATE

The case of John McCain also does not help Cruz.  Under the common law, the status of birth in the country is also extended to children born physically out of the territory of the United States to U.S. citizen parents who are on diplomatic service for or serving the military of the United States.  These children are “reputed born” in the United States and do not need a naturalization Act of Congress to make them citizens of the United States.  See Vattel, § 217. “Children born in the armies of the state or in the house of its minister at a foreign court. For the same reasons also, children born out of the country, in the armies of the state, or in the house of its minister at a foreign court, are reputed born in the country; for a citizen who is absent with his family, on the service of the state, but still dependent on it, and subject to its jurisdiction, cannot be considered as having quitted its territory.”).  John McCain was born outside the territory of the United States (in Panama), but not outside its jurisdiction, to U.S. citizen parents serving the national defense of the United States.  Because his parents, serving the armies of the United States, are considered as not having voluntarily quitted the territory of the United States and as remaining under the jurisdiction of the United States, their son born to them in the foreign territory is reputed born in the United States.  Hence, McCain was born "in" the United States to U.S. citizen parents.  He is therefore a natural born citizens. Cruz’s parents had voluntarily left the United States to pursue private economic interests in Canada.  Neither Cruz’s father nor mother were serving the national defense of the United States (serving in the military or some other comparable capacity) while in Canada.   So, while in Canada, Cruz’s parents were under the strict jurisdiction of Canada and not that of the United States.  Additionally, Cruz’s father was an alien.  Hence, Cruz cannot benefit from the McCain rule. 

Hence, a natural born citizen needs neither the Fourteenth Amendment nor any naturalization Act of Congress to be a citizen at birth.  It is the person’s birth circumstances alone, birth in the country to citizen parents, which make the person a natural born citizen. 

VIII.  THE JACK MASKELL THESIS


Maskell maintains in his new January 11, 2016 article as he did in his earlier edition that "the traditional, historical, and legal meaning" of a natural born citizen is "one who is entitled to U.S. citizenship 'by birth' or 'at birth.' This would include those born 'in' the United States and under its jurisdiction (i.e. 'native' born), even those born to alien parents; those born abroad to U.S. citizen-parents; or those born in other situations meeting legal requirements for U.S. citizenship 'at birth.' Such term, however, would not include a person who was not a U.S. citizen by birth or at birth, and who was thus born an 'alien' required to go through the legal process of 'naturalization' to become a U.S. citizen." https://www.scribd.com/doc/295658863/Qualifications-for-President-and-the-Natural-Born-Citizenship-Eligibility-Requirement-Congressional-Research-Service-R42097-2016#scribd  .  

Maskell's definition of a natural born citizen is anything but "traditional" and "historical."  Rather, it is a revisionist definition of the clause, a product of the "living constitution" existing in his mind and not that of the Framers.  The Maskell argument, among many of its defects, blatantly ignores the text and structure of Article I and II and this constitutional law.  Apart from erroneously believing that “at birth” means the same thing as “by birth,” Maskell also ignores that due to one’s birth circumstances one may still need either the Fourteenth Amendment (if born in the United States) or a naturalization Act of Congress (if born out of the territory and jurisdiction of the United States) to be made a citizen, regardless of whether those positive laws make or adopt one as a citizen at birth or after birth. Wong needed the Fourteenth Amendment to make him a citizen of the United States because while he was born in the United States, he was not born to U.S. citizen parents.  Cruz himself needs a naturalization Act of Congress to adopt him as a citizen of the United States birth without which he would have been an alien at birth.  In other words, in those cases it is still either the Fourteenth Amendment or a naturalization statute which determines and controls whether someone is or is not a citizen, regardless of whether the Amendment or statute makes or adopts one a citizen at birth or after birth.  The need for the Amendment or statute does not disappear simply because the Amendment or statute itself makes or adopts one as a citizen at birth.  If not for that Amendment or naturalization statute, one being made or adopted a citizen at birth would be an alien. As to persons born out of the United States, see, for example, U.S. v. Wong Kim Ark (explained that one born out of the United States to U.S. citizen parents, not being a citizen at common law can only be a naturalized citizen through a naturalization Act of Congress and that if it were not for a naturalization Act of Congress, he or she would be an alien and not a citizen);  Montana v. Kennedy, 366 U.S. 308 (1961) (explained that if a child is not born in the country, the child needs a naturalization Act of the sovereign authority to make that child for all intents and purposes a citizen and without such naturalization the child would be an alien); Rogers v. Bellei, 401 U.S. 815 (1971)  (a person born out of the United States to U.S. citizen parents can be a citizen of the United States only if Congress allows it through one of its naturalization acts and such person therefore becomes a citizen of the United States “at birth” through naturalization without which the person would be an alien); Miller v. Albright, 523 U.S. 420 (1998) (“There are ‘two sources of citizenship, and two only: birth and naturalization.’ United States v. Wong Kim Ark, 169 U.S. 649, 702 (1898). Within the former category, the Fourteenth Amendment of the Constitution guarantees that every person ‘born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization.’ 169 U.S., at 702. Persons not born in the United States acquire citizenship by birth only as provided by Acts of Congress. Id., at 703.”).  Miller did not say for persons born out of the United States, like it did for persons born in the United States who become at once citizens of the United States, that they did not need naturalization.  On the contrary, it said that those persons become citizens of the United States “by birth only as provided by Acts of Congress.”  So, it is not “by birth” alone.  Rather, it is “by birth as provided by Acts of Congress.”  All these decisions by our U.S. Supreme Court demonstrate that, regardless of whether one is made or adopted a citizen by the Fourteenth Amendment or naturalized at birth or after birth by a naturalization Act of Congress, one is still made and adopted as a citizen by the Amendment or naturalized by the statute without which the person would be an alien. 

Maskell argues that someone who became a citizen of the United States at birth is not a naturalized citizen of the United States because Congress tells us so in its naturalization statutes.  He points to 8 U.S.C. sec. 1101(a) (23) and provides this quote:  “The term ‘naturalization’ means the conferring of nationality of a state upon a person after birth, by any means whatsoever.”  Maskell errs on several fronts.  First, Maskell leaves out the beginning part of statutory definition which provides:  “(a) As used in this chapter-- . . . (23) The term ‘naturalization means the conferring of nationality of a state upon a person after birth, by any means whatsoever.”  So Congress provided that definition of naturalization only for purposes of a chapter in its own naturalization statutes and not for purposes of the Constitution.  Second, Congress’s definition is not for the purpose of demonstrating how the Constitution defines naturalization, which as we have seen is much broader than how Congress defines it for purposes of its own statutes.  Needless to say, the Constitution controls what the definition of naturalization is, not Congress.  Congress could not through such acts change who the Constitution views as being naturalized.  Again, the Constitution relies upon the common law the nomenclature with which the Framers were familiar to define a natural born citizen.  Under that common law, all children born in a country to parents who were it citizens were citizens as were the parents.  These were the “natives, or natural-born citizens.”  Minor.  Minor also explained that under that common law all the rest of the people were “aliens or foreigners,” who could be naturalized as citizens of the United States under the naturalization Acts of Congress.  As we can see, the Constitution’s definition of naturalization is broader than that provided by Congress in its naturalization Acts.  Under the Constitution, anyone who is not a natural born citizen is in need of naturalization if that person wants to be a citizen of the United States.
 
Maskell also argues that Cruz is a natural born citizen under § 301(b) of the Immigration and Nationality Act of 1952, a naturalization Act of Congress that adopts children born out of the United States to U.S. citizen parents.  But that naturalization Act was not around when the Framers wrote the Constitution in 1787.  It therefore cannot possibly determine the definition of a natural born citizen.  Furthermore, the statute is a naturalization Act of Congress passed by it under its naturalization powers.  It therefore cannot possibly make anyone a natural born citizen.  Finally, the plain and clear text of the Act demonstrates that it adopts persons to be "citizens" of the United States, not "natural born citizens" of the United States.  Hence, the statute does not do what Cruz supporters wish it to do.  On the other hand, it the statue could be interpreted to make anyone born out of the United States a natural born citizen, then there is a constitutional question whether Congress has such power under its power to establish a uniform rule of naturalization throughout the United States. 

We have seen what the Constitution’s definition of a natural born citizen is.  Both Minor v. Happersett (1875) and U.S. v. Wong Kim Ark (1898) confirm that the Framers’ definition was a child born in the United States to U.S. citizen parents.   Hence, the Framers made a critical constitutional distinction between a "citizen" and a "natural born citizen."   The only birth circumstances allowing a child to be a natural born citizen were birth in the United States to parents who were both its citizens.   In contrast, “citizens” were everyone else born under different birth circumstances and who were nevertheless made citizens by a naturalization Act of Congress or treaty.  Later on in our history, Congress expanded those birth circumstances and thereby made more “citizens” through the Civil Rights Act of 1866 and the Fourteenth Amendment.  These latter enacted laws allowed children born in the United States to alien parents to also qualify as citizens of the United States “at birth” (not to be conflated, confounded, and confused with the natural born citizens).  Our U.S. Supreme Court has for years established that anyone who is born out of the United States to U.S. citizen parents is a naturalized citizen of the United States, but only by virtue of a naturalization Act of Congress and in default thereof an alien at birth.  They are not "native-born citizens" under the Amendment.  Hence, being naturalized and not even meeting the Fourteenth Amendment’s minimum constitutional standard of citizenship, i.e., born in the United States while subject to its jurisdiction, they are not nor can they be natural born citizens, who represent the ceiling standard of U.S. citizenship. 

Congress has the power under the Constitution to "establish an uniform Rule of Naturalization. . . throughout the United States" and that under that power Congress creates "at birth" citizenship.  Before any constitutional question can be analyzed as to whether one is a natural born citizen, one must first demonstrate that one is at least a citizen of the United States "at birth" under one of these statutes.  But satisfying any such statutory definition does not mean that one has satisfied the Constitution's definition of a natural born citizen.  The 1790 Naturalization Act said that children born out of the limits and jurisdiction of the United States to U.S. citizen parents “shall be considered as natural born citizens."  That the statute  required, however, that both parents be U.S. citizens.  We know that the statute was repealed by the 1795 Naturalization Act which said that those same children “shall be considered as citizens of the United States,” hence removing the earlier use of “natural-born citizens.”  Evidently, Congress, with the lead of James Madison and with the approval of President Washington, concluded that there should not be any confusion as to whether those children were actually natural born citizens.  

The naturalization Act of Congress that applies to Cruz who was born in 1970 is § 301(b) of the Immigration and Nationality Act of 1952.  Hence, even if Cruz can satisfy all the conditions of this statute, the question still remains whether his "at birth" status under the statute satisfies the constitutional definition of a natural born citizen.  If Cruz does not satisfy the statutory requirements, then we never get to the constitutional question.  If Cruz does satisfy all the conditions of the statute which makes him a citizen of the United States “at birth,” we then have to examine if the statute defines a natural born citizen.  If it does not, we do not get to any constitutional question.  We have seen that Congress’s naturalization statutes contain very specific requirements (condition precedent and condition subsequent) which Congress has changed throughout our history.  Our law provides that for persons born out of the United States, U.S. citizenship is determined by the statute in effect at the time of the person’s birth, unless a later law changes that person’s birth status retroactively. Montana v. Kennedy, 366 U.S. 308, 312 (1961).  See also 7 U.S. Department of State Foreign Affairs Manual 1131.1-2 (“The law applicable in the case of a person born abroad who claims citizenship is the law in effect when the person was born, unless a later law applies retroactively to persons who had not already become citizens”).  This rule alone tells us that a naturalization Act cannot serve as the basis for making one a natural born citizen.  Surely, the Framers did not expect the definition of a natural born citizen to change over time at the whim of Congress without a constitutional amendment.

If the Congressional statute can be interpreted to mean that Congress intended to include children that it makes as "citizens of the United States "at birth" under its statutes to be the equivalent to the natural born citizens, then we have to analyze whether the statute is unconstitutional, for Congress only has power to establish a uniform rule of naturalization throughout the United States. Both the 1790 and 1795 Naturalization Acts demonstrate that Congress's early naturalization Acts did not define a natural born citizen and that Congress made it clear that it never intended to do so.  Congress has never again even mentioned the clause "natural born citizen" in any of its naturalization Acts and there does not exist any evidence from any Congressional activity that Congress through any one of its naturalization Acts ever intended to define a natural born citizen through one of its naturalization Acts.  Hence, showing that one is a citizen of the United States "at birth' under a naturalization Act of Congress does not establish that one is a natural born citizen.  Even if it did, the question then is whether that naturalization statute is constitutional given how the Constitution defines a natural born citizen under a specific set of birth circumstances.  Given that Congress in matters of citizenship has power only to establish a uniform rule of naturalization throughout the United States, any attempt by Congress to add by statute rather than by constitutional amendment additional birth circumstances and therefore people who may be natural born citizens and therefore eligible to be President would be an unconstitutional exercise of Congress’s naturalization powers.
    
IX.  THE CASE OF WINSTON CHURCHILL

The case of Winston Churchill, born in Great Britain like Cruz born in Canada, demonstrates nicely the impact that a naturalization Act can have on one’s life and how it was a naturalization statute and not his birth circumstances alone that made Cruz a citizen of the United States “at birth.”   Cruz, born in Canada to a U.S. citizen mother and a non-U.S. citizen father, can be Prime Minister of Canada, like Winston Churchill, born in Great Britain to a U.S. citizen mother and a British citizen father, was Prime Minister of Great Britain. See Mario Apuzzo, "If Winston Churchill Was Not Even a Citizen of the United States, How Can Ted Cruz Be Its Natural Born Citizen,?" available at http://puzo1.blogspot.com/2016/01/if-winston-churchill-was-not-even.html  . Churchill was not even a citizen of the United States, let alone a natural born citizen because when he was born in 1874 there was no naturalization Act of Congress in place making him a citizen.  Cruz got lucky because Congress in 1934 passed a naturalization Act (Act of May 24, 1934, § 1, 48 Stat. 797) which for the first time allowed a person born in a foreign country to a U.S. citizen mother and a non-U.S. citizen father to be a citizen of the United States.  That naturalization rule was carried forward in the Nationality Act of 1940 (H.R. 9980; Pub.L. 76-853; 54 Stat. 1137, enacted October 14, 1940) and the Immigration and Naturalization Act of 1952 (Pub.L. 82–414, 66 Stat. 163, enacted June 27, 1952), the latter being the statute in effect when Cruz was born and without which, along with those of 1934 and 1940, Cruz would be an alien.  The critical point is that Cruz became a citizen by way of a naturalization statute.  Without that statute, he would have been an alien as was Churchill.  Needing a naturalization statutes to make him a citizen, Cruz is not nor can he be a natural born citizen.  With respect to whether he is a natural born citizen, it changes nothing that the naturalization statute made Cruz a citizen of the United States “at birth.”  It was not his birth that made him a citizen (Churchill had the same birth circumstances), but rather the naturalization statute. 

Churchill and Cruz were born under the same birth circumstances, both born in a foreign country to a U.S. citizen mother and a non-U.S. citizen father.  Why should Winston Churchill not be a natural born citizen and Ted Cruz be a natural born citizen when they were both born in a foreign country to U.S. citizen mothers and non-U.S. citizen fathers?  If Cruz is a natural born citizen, then Churchill should have been too and he should have known it.  But we know that Churchill was not and he also knew that.  If Churchill was not a natural born citizen, then neither is Cruz.  Cruz seizes upon the fact that Congress just happened to come along after Churchill was born and changed the naturalization Act which lucky for him, made him a citizen of the United States at birth.  But surely, that naturalization Act did not make the otherwise alien Cruz (which is what Churchill was) a natural born citizen.  Churchill honestly admitted that he was not a natural born citizen of the United States. But then Ted Cruz believes that he operates under different constitutional rules and that those different rules should apply to him merely because he wants to be President.  Cruz, being the constitutional scholar, conservative, and religious persons that he says he is, should just admit like Churchill that he is not eligible to be President of the United States and Commander in Chief of the Military without a constitutional amendment so providing.

So, we have seen, that one “did not have to take any steps or go through a naturalization process at some point after birth" does not prove that one is a natural born citizen.   The only thing it proves is that one is a “citizen” of the United States “at birth.” It does not prove that one is a citizen “by birth,” let alone that one is a natural born citizen.  It does not prove that one was a citizen “by birth” alone, which status is reserved under the Constitution only for persons born in the United States.  The latter include the “natural born citizens” of the United States under the common law and the “citizens” of the United States “at birth” under the Fourteenth Amendment, who if not also satisfying the natural born citizen birth circumstances, i.e., born in the country to citizen parents, are not natural born citizens. 

X.  ORIGINALIST INTERPRETATION V. THE LIVING CONSTITUTION

Some argue that we should not define a natural born citizen using the “originalist” approach to constitutional interpretation.  That approach looks to the meaning of terms and phrases that the Framers and Ratifiers gave to them at the time they adopted and ratified it.  Under constitutional originalism, today we are bound by the historical meaning that terms and phrases in the Constitution had when it was adopted and ratified.  These persons advocate for a “living Constitution,” one which evolves with time to meet the changing needs of American society.  They maintain that the original definition of the clause is too narrow and rigid and no longer serves its original purpose.  They maintain that one is not being “open minded” when one takes the original approach to constitutional interpretation.  There are several problems with this argument. 

First, the reason why societies pass laws is so that people can be guided by a code of conduct.  The text of those laws tell the people exactly what they can and cannot do.  It is that very text which brings certainty and predictability to human affairs.  The text of a law must be honored if we are to be guided by laws rather than by the whim of man.  As to the “living” Constitution, Justice Black, Douglas, and Marshall in their dissent in Bellei said it well: 

The Constitution, written for the ages, cannot rise and fall with this Court's passing notions of what is “fair,” or "reasonable," or "arbitrary." . . . This precious Fourteenth Amendment American citizenship should not be blown around by every passing political wind that changes the composition of this Court. . . . Of course the Court's construction of the Constitution is not a "strict" one. On the contrary, it proceeds on the premise that a majority of this Court can change the Constitution day by day, month by month, and year by year, according to its shifting notions of what is fair, reasonable, and right. There was little need for the founders to draft a written constitution if this Court can say it is only binding when a majority finds it fair, reasonable, and right to make it so. That is the loosest construction that could be employed. It is true that England has moved along very well in the world without a written constitution. But with complete familiarity with the English experience, our ancestors determined to draft a written constitution which the members of this Court are sworn to obey. While I remain on the Court, I shall continue to oppose the power of judges, appointed by changing administrations, to change the Constitution from time to time according to their notions of what is "fair" and "reasonable." I would decide this case not by my views of what is "arbitrary," or what is "fair," but rather by what the Constitution commands.

Id. at 837, 844-45. The Framers, Ratifiers, and the people have spoken.  The Constitution contains the natural born citizen clause and anyone wanting to be President and Commander in Chief must satisfy its requirements.  This clear command cannot be ignored simply because we want certain individuals to be eligible to be President today. 

Second, the Framers inserted the natural born citizen clause into presidential and commander eligibility so as to keep out of those offices foreign and monarchical influence.[3]  Any interpretation of the natural born citizen clause under a “living and breathing” Constitution, by expanding eligibility for the Office of President and Commander to others who were not natural born citizens in the eyes of the Framers, is an assault upon the Framers’ purpose for requiring future Presidents and Commanders that they be natural born citizens.  The same national security concerns regarding the Office of President and Commander in Chief of the Military exist today as they did when the Framers adopted and the Ratifiers ratified the Constitution.  Today as then we are concerned with foreign influence infiltrating our national government and particularly the Office of President and Commander in Chief of the Military.  If we are to give force to the Framers’ purpose for requiring future Presidents and Commanders to be natural born citizens, then we can only define the clause as they did when they drafted and adopted the Constitution. 

Third, we have seen the important national security purpose that the natural born citizen clause plays in our nation.  If we do not like the way the Framers defined a natural born citizen to achieve that purpose and given the important national security purpose that the clause serves, its meaning should be changed by constitutional amendment.  Passing such an amendment requires ratifying a constitutional amendment which will involve the consent of the nation.  

Fourth, there is no more need today than there was in 1787 to have children born out of the United States be found to be natural born citizens.  As we have children born out of the United States to U.S. citizen parents today, so did the Founding generation.  The situations that provided exceptions to the rule, birth outside the country to parents who were either serving the armies of the nation or in diplomatic service, apply today as they did then.  But the Founding generation did not see birth out of the United States to U.S. citizen parents who were out of the country on personal or private business as giving ground for their child to be found to be a natural born citizen.  There simply is nothing happening today which should compel a change in that regard without passing a constitutional amendment so providing for that change.  Today we cannot say that it no longer makes sense given our needs today to be bound by the original definition of a natural born citizen.  

So, we have seen that under the originalist approach to constitutional interpretation, Ted Cruz is not even a citizen of the United States, let alone a natural born citizen.  Under Congress’s naturalization powers, he is a citizen of the United States at birth, but only by virtue of a naturalization Act of Congress.  Congress in later years accepted citizen mothers as eligible to transmit their U.S. citizenship to their children born out of the country and it is that acceptance which makes Cruz a citizen of the United States at birth.  But that change has nothing to do with defining a natural born citizen.  Hence, today Ted Cruz is at most a “citizen” of the United States from the moment of birth only by virtue of a naturalization Act of Congress.  He is not and cannot be a natural born citizen.  There is no basis to the argument that the original definition of a natural born citizen should be abandoned and a more flexible one should be adopted because our needs today require it.  If the American people do not like the original definition of a natural born citizen, then let them change it with a duly ratified constitutional amendment.   

XI.  THE MEANING OF A NATURAL BORN CITIZEN AS BEING HOPELESSLY LOST

Finally, there are even some who argue that the natural born citizen clause is so ambiguous that it has been lost to history or that the Founders and Framers did not agree on any one particular definition of the clause.  They argue that the Founders and Framers were not precise in how they defined citizenship.  They argue that since the Founders and Framers did not give us a definition of the clause, we have no choice today but to give it one ourselves.  But there is no reason to just throw up our hands as if defeated by ignorance. The simple response to this argument is that sometimes interpreting the Constitution is not easy.  We saw in District of Columbia v. Heller 554 U.S. 570 (2008) what the U.S. Supreme Court had to do to determine the meaning of the Second Amendment right to bear arms, a clause that was never examined in the history of our nation.  The tools used by the Court can be used to interpret the meaning of the natural born citizen clause.  If fact, I have used those same tools here to interpret the natural born citizen clause.  I have examined the text and structure of the Constitution and presented historical and legal evidence, although not exhaustive given the need to keep this article as short as possible, that demonstrates how the Framers defined a natural born citizen.  The reader is able to decide whether the case has or has not been sufficiently made.  Knowing how the Framers and our nation originally defined the clause, there is no license to just give the clause whatever definition is convenient to those living in the politically charged environment of today.   
  
XII.  APPLICATION TO TED CRUZ, ALONG WITH BARACK OBAMA, MARCO RUBIO, BOBBY JINDAL, AND NIKKI HALEY

Given the Framers’ definition of a natural born citizen, Donald Trump is right and the Illinois Board of Elections is wrong. Ted Cruz is not an Article II “natural born citizen.”  He was born in a foreign nation, Canada, i.e., out of the territory and jurisdiction of the United States, presumably to a U.S. citizen mother and an alien father.  Born out of the territory and jurisdiction of the United States to an alien father, the Framers at the time they drafted and adopted the Constitution would not have seen Cruz at his birth as a citizen of the United States, let alone a natural born citizen.  The Framers through the natural born citizen clause sought to provide a “strong check’ on foreign and monarchical influence infecting the highest office in the land.   Under the Naturalization Acts of 1790, 1795, 1802, 1804, and 1855, Cruz would have had to naturalize, either derivatively at the time his father’s  naturalization or on his own upon reaching the age of majority.  Such naturalization would have required his renouncing any allegiance to any foreign power.  Cruz was born with dual citizenship of the United States and Canada.  At the time of the ratification of the Constitution, Canada was part of the British Empire.  The Framers never would have permitted a person born in Canada and thereby a natural born subject of Great Britain to be eligible to be President and Commander in Chief of the Military.  Things are different with Canada today, but Canada is still a foreign nation and would have still been in the eyes of the Framers.  Cruz did not renounce the Canadian citizenship with which he was born until 2014, when he was 43 years old, and he wants to be elected President only two years after that renunciation. 

At best, under the applicable naturalization Act of Congress, if Cruz can prove that he satisfies all of its conditions, Cruz is a naturalized “citizen” of the United States “at birth” (not “by birth”) by virtue of the Immigration and Naturalization Act of 1952 (undoubtedly a naturalization Act of Congress) without which he would have been born an alien.   But that is not the end of the story.  Cruz is a naturalized "citizen" of the United States "at birth," but only by virtue of a naturalization Act of Congress (The Immigration and Naturalization Act of 1952). He is not a natural born citizen as the Constitution defines that clause.  He is not an Article II "natural born citizen" "by birth" only by virtue of his birth circumstances, as recognized and confirmed by the common law to which the Framers looked to define a natural born citizen.  As we have seen only the birth circumstances of being born or reputed born in the United States to parents who were both U.S. citizens at the time of the child’s birth can make one a natural born citizen.  With that being the only definition of a natural born citizen under the Constitution, Congress, throughout our history and down to the present, did not nor did it intend to make anyone a natural born citizen under any of its naturalization Acts, including the one upon which Cruz relies for his “at birth” citizenship status.  The Act does not even mention a natural born citizen.  If Congress did so intend and the statute is read to do just that, then the statute is unconstitutional.  Hence, any interpretation of the statute as making anyone a natural born citizens is to give the statute an unconstitutional reach. 

Barack Obama,[4] Marco Rubio, Bobby Jindal, and Nikki Haley, all born in the United States to two alien parents, are also not natural born citizens.  They are all “citizens” of the United States “at birth” under the Fourteenth Amendment, but not Article II “natural born citizens” of the United States.  Having their alienage, as inherited through jus sanguinis from their alien parents, removed by the Fourteenth Amendment, they are in reality also naturalized “at birth,” although by the Fourteenth Amendment and not by a naturalization Act of Congress. 

XIII. CONCLUSION

Being neither “a natural born Citizen, [n]or a Citizen of the United States, at the Time of the Adoption of this Constitution,” Ted Cruz, Barack Obama, Marco Rubio, Bobby Jindal, and Nikki Haley are not constitutionally eligible to the Office of President.  Article II, Section 1, Clause 5.  For further analysis and discussion of the difference between a “citizen” of the United States and a “natural born citizen” of the United States, see Mario Apuzzo, A Citizen is One Thing, But a Natural Born Citizen is Another,    http://puzo1.blogspot.com/2015/11/a-citizen-is-one-thing-but-natural-born.html 

Mario Apuzzo, Esq.
February 5, 2016
http://puzo1.blogspot.com
####

Copyright © 2016
Mario Apuzzo, Esq.
All Rights Reserved  
 



ENDNOTES:

[1] On July 25, 1787, John Jay wrote a letter to then-General Washington, who was acting as president of the Constitutional Convention, stating:
"Permit me to hint, whether it would not be wise & seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expressly that the Command in chief of the american army shall not be given to, nor devolve on, any but a natural born Citizen" (“born” underlined in the original).
http://rs6.loc.gov/cgi-bin/query/r?ammem/hlaw:@field%28DOCID+@lit%28fr00379%29%29 .  John Jay reminded George Washington of the importance of remanding back to the original concerns of the people and offered his presentation, to which George Washington offered, verbatim, to the convention.  Alexander Heard and Michael Nelson, Presidential Selection 123 (Duke University Press 1987) via Google Books.  Jay demanded that there be a "strong check" on foreign influence infiltrating the national government in general and the Office of Commander in Chief of the Military specifically.  A natural born subject, which permitted dual and conflicting allegiance at birth, did not provide that strong check on foreign influence for which Jay was looking.  

[2] Jack Maskell erroneously argues in his updated article, Qualifications for President and the “Natural Born” Citizenship Eligibility Requirement (January  11, 2016), available at   https://www.scribd.com/doc/295658863/Qualifications-for-President-and-the-Natural-Born-Citizenship-Eligibility-Requirement-Congressional-Research-Service-R42097-2016#scribd  , that the English Parliament’s early naturalization Acts changed the common law and actually became common law.  He then makes the quantum leap in logic and says that therefore English common law accepted children born out of the King’s dominion to English subject parents to be natural born subjects.  From there he tells us, although without any historical or legal evidence to support his conclusion, that the Framers relied upon that English common law to define an Article II natural born citizen.  Through such a fallacious argument, he attempts to show that persons born out of the territory and jurisdiction of the United States to U.S. citizen parents are natural born citizens also under an “originalist” interpretation of the Constitution.  The simple answer to his flawed argument is that it was the English naturalization Acts themselves that naturalized those children born out of the King’s dominion to be treated for all intents and purposes as if they were natural-born subjects, not the English common law. 

[3] The historical record is replete with contemporaneous and later evidence that the Framers required future Presidents and Commanders to be free of monarchial and foreign influence.  One example from later years will suffice.  James Kent, explained in his 1 Commentaries on American Law  (8th ed. 1854)

The Constitution requires (a) that the President shall be a natural born citizen, or a citizen of the United States at the time of the adoption of the Constitution, and that he shall have attained to the age of thirty-five years, and shall have been fourteen years a resident within the United States. Considering the greatness of the trust, and that this department is the ultimately efficient executive power in government, these restrictions will not appear altogether useless or unimportant. As the President is required to be a native citizen of the United States, ambitious foreigners cannot intrigue for the office, and the qualification of birth cuts off all those inducements from abroad to corruption, negotiation, and war, which have frequently and fatally harassed the elective monarchies of Germany and Poland, as well as the pontificate at Rome.

Id. at 293. 

Story first said that the President must be a “natural born citizen” and then later he said that he must be a “native citizen of the United States.”  As we shall see below, Vattel and the unanimous U.S. Supreme Court in Minor v. Happersett (1875) gave to “natives” the same meaning that they gave to “natural-born citizens,” i.e., born in the country to parents who were its citizens.  In later years, the expression “native-born citizen” took on the more limited meaning of born in the country while subject to its jurisdiction and which describes a citizen of the United States “at birth” under the Fourteenth Amendment.  See U.S. v. Wong Kim Ark (1898) (included as qualifying alien parents to whom a child is born in the United States to satisfy the jurisdiction requirement of the Fourteenth Amendment only those domiciled and permanently residing in the United States and who were neither foreign diplomats nor military invaders at the time of the child’s birth).  There is never any question that a child born in the country to citizen parents, i.e., a native, or natural born citizen, is born in the country while subject to its jurisdiction.  Hence, when it comes to “natives, or natural-born citizens,” there never is any need to engage in jurisdiction analysis as there is to determine whether one is a “native-born citizen” under the Fourteenth Amendment.  Nevertheless, there has been a tendency with courts, scholars, and commentators to conflate, confound, and confuse a native-born citizen under the Fourteenth Amendment with an Article II natural born citizen. 

[4] Never having presented an original or certified true copy of an original long-form birth certificate to any court in which he was sued, it is presumed that Obama was born in the United States.  Still, he is not an Article II natural born citizen because he was born to a U.S. citizen mother and an alien father.  If Obama was born out of the territory and jurisdiction of the United States like Cruz, he would have been a citizen of the United States only if a naturalization Act of Congress allowed it.  The law that applied at the time of Obama's birth on August 4, 1961 (which is the same law that applied to Cruz) required that his U.S. citizen mother have physical presence in the United State prior to Obama's birth for a period of at least 10 years, 5 of which were after she turned 14 years old.  Ann Dunham was only 18 when Obama was born.  Hence, she could not possibly have met the physical presence requirement demanded by the applicable naturalization Act (the Immigration and Nationality Act of 1952). So, if Obama was not born in the United States, he would not have qualified, like Ted Cruz did whose mother was 35 years old when he was born, to be a naturalized citizen of the United States at birth under any naturalization Act of Congress. He would have had to become a naturalized citizen of the United States after birth through subsequent naturalization under one of those Acts.



72 comments:

Brianroy said...

I would also add:

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) @174
It cannot be presumed that any clause in the Constitution is intended to be without effect....

and under Public Law 414, Section 320 (THE 1952 INA that Cruz claims enables him):
"PUBLIC LAW 414-JUNE 27, 1952,
CHILD BORN OUTSIDE OF UNITED STATES OF ONE ALIEN AND ONE CITIZEN PARENT AT TIME OF BIRTH; CONDITIONS UNDER WHICH CITIZENSHIP AUTOMATICALLY ACQUIRED
SEC. 320. (a) A child born outside of the United States, one of whose parents at the time of the child's birth was an alien and the other of whose parents then was and never thereafter ceased to be a citizen of the United States, shall, if such alien parent is naturalized, become a citizen of the United States, when- (1) such naturalization takes place while such child is under the age of sixteen years; and (2) such child is residing in the United States pursuant to a lawful admission for permanent residence at the time of naturalization or thereafter and begins to reside permanently in the United States while under the age of sixteen years. (b) Subsection (a) of this section shall not apply to an adopted child." Ted's father naturalized to the United States when Rafael was in his mid 30s, and more than twice past the deadline by in the 1952 INA.

And then there is...

Ogden v. Saunders, 25 U.S. 12 Wheat. 213 (1827) @ 322, 337-338
@332
The single question for consideration is whether the act ...is consistent with or repugnant to the Constitution of the United States?

@337
"The original obligation, whatever that may be, must be preserved by the Constitution. Any law which lessens must impair it.
All admit that the Constitution refers to and preserves the legal, not the moral, obligation of a contract. Obligations

Page 25 U. S. 338
purely moral, are to be enforced by the operation of internal and invisible agents, not by the agency of human laws. The restraints imposed on states by the Constitution are intended for those objects which would, if not restrained, be the subject of state legislation. What, then, was the original legal obligation of the contract now under the consideration of the Court?"

It is the right of those of us who have a U.S. Citizen Father and a U.S. Citizen Mother at the time of our birth on U.S. Soil to EXCLUSIVELY run for or be President of the United States. Those who argue for Cruz and other illegals to be POTUS argue to violate the Constitutional right of Natural Born Citizens of the United States to run only against other U.S. Natural Born Citizens, having only ONE NATIONALITY, THE UNITED STATES, FROM BIRTH TO WHEN THEY RUN, so therefore

Miranda v. Arizona, 384 U.S. 436 (1966) @ 491
"Where rights secured by the Constitution are involved,
there can be no rulemaking or legislation which would abrogate them."
And since,

Almeida-Sanchez v. United States, 413 U.S. 266 (1973) @ 272
"It is clear, of course, that no Act of Congress can authorize a violation of the Constitution."

Norton v. Shelby County, 118 U.S. 425 (1886)@442 “…an unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.”

Ex parte Quirin, 317 U.S. 1 (1942) @ 25
"Congress and the President, like the courts, possess no power not derived from the Constitution."

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)
again @174 - "It cannot be presumed that any clause in the Constitution is intended to be without effect...."
@ 180 - “a law repugnant to the constitution IS VOID. . . .” and
“in declaring what shall be the SUPREME law of the land, the CONSTITUTION itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in PURSUANCE of the constitution, have that rank.”

(end part 1)

Brianroy said...


(Part 2 of 2)

During one of the debates, Ted asked Donald Trump..."When has the Constitution changed"? I will also say that of Cruz...Rafael, just when has the Constitution changed?

And since Rafael, reinvented as "Ted" said what he did while running for U.S. Senate...
http://www.newswithviews.com/JBWilliams/williams300.htm
Interviewer: “What is your understanding of how one becomes a natural born Citizen?”
Cruz: “Two citizen parents and born on the soil.”
...when did the Constitution change?

When did it change so that when both mother and father U.S. citizens birthed a child in Canada and the child was disqualified, when did the CONSTITUTION get amended or changed? It hadn't.
By example among the Democrats who had 2 United States Citizen Parents FAIL to have a United States Natural Born Citizen in Canada, we have the ineligibility of F.D.R. Jr. to guide us on the matter. The N. Y. Times, May 26, 1949, p. 26, columns 3 - 4, by legal example demonstrated that legally Franklin D. Roosevelt, Jr., third son of the late President, “never can carry that great name back into the White House” since his birth on August 17, 1914, was at Campobello Island, New Brunswick, Canada, home of a Roosevelt Canadian summer estate.
So what makes Ted's mother so special that her parentage is better at making a Canadian born child a United States Natural Born Citizen over and above a combined both parents team of Franklin Delano Roosevelt and his wife Eleanor, both U.S. Citizens? I don't see his mother or father on a dime. (Ha, ha).

Stan said...

Thank you, Atty. Apuzzo. I appreciate all your efforts in this regard, to educate a sometimes easily flummoxed citizenry. Even with such an important issue as who is eligible to occupy the highest office in the land, and why.

The mind boggles at the ease with which so much of the citizenry has been hoodwinked in this matter....

cfkerchner said...

Another excellent essay. A real tour de force. Bravo Zulu! CDR Kerchner (Ret) - http://www.ProtectOurLiberty.org

leo derosia said...

I can see why people would want grenades restricted but under the 2nd my rights as a us citizen to keep and bear arms shall not be infringed and that includes everything. Spare me the living constitution nonsense, if you do not like it then amend it. When someone talks about interpretation then that means to me they want to sneakily change the plain meaning of the words. Every member of congress does not care about article 2 so they either lie about it or are ignorant in some cases. The Illinois board did not make a mistake, they knowingly lied to let cruz on ballot. I can only imagine what a clown like o'reilly would be stammering if he was told Churchill was a us natural born citizen like he claims cruz is. It is beyond preposterous

Kanbun said...

Mario, Great as always. I wonder....you opine on 'what if' Cruz had not met the residency requirements of the 1952 Act, but do we know if he met any other conditions subsequent included in that Act? Was the mother required to register his birth with US authorities? Did he have to swear an allegiance or lose his citizenship?

Also, there has been speculation that Cruz's mother was a Canadian citizen at his birth and by Canadian law therefore would have automatically relinquished here US citizenship. What if?

cfkerchner said...

Evasive and testy #TedCruz in NH shuts down a valid question from 17 year old: https://www.youtube.com/watch?v=gh2dsf-Y_aY #credibility #tedcruzcubancitizen #tedcruzcandiancitizen

cfkerchner said...

What cowards! They didn't invite Mario.
Can Cruz legally be president? Ivy League scholars debate | News & Observer
http://www.newsobserver.com/news/nation-world/national/article58826483.html

Mick said...

Mr. Appuzo,

"At birth" means "AFTER BIRTH". No one is naturalized in the birth canal or the womb.
The definition of birth is "the emergence of a baby from the body of it's mother". One second after the emergence is "AFTER BIRTH".

"Any means whatsoever" is not necessarily by oath. Like you said, it could be treaty, statute or oath. The criminals like to imply that it means raising ones hand and repeating an oath.

See the Docket of the Florida case here:

http://www.clerk-17th-flcourts.org/ClerkWebsite/welcome2.aspx

Go to "case search" (2nd line down on left)
Case # CACE15022044

You will see that the case has been sent to case management to set a hearing date, and also the recent motion by the Secretary of State for a change of Venue, after he was served 5 weeks ago, with only 36 days left until the Primary.

Mario Apuzzo, Esq. said...

Commander Kerchner,

Thank you for sharing this great piece of history with us about Cruz'a character. The person who asked the question was very clear. He said the question was about Cruz's credibility, not eligibility. He asked Cruz how it could be that as he claims he did not know that he was a Canadian citizen. Cruz evaded the question of his credibility, and rather seized upon the question to repeat the lie about the naturalization Act under which he was born making him a natural born citizen. When the person attempted to get Cruz to answer the question about his credibility, Cruz insisted on plugging the lie about his eligibility, to the point of shouting down the person. The person persisted that he wanted an answer to his credibility question, not any eligibility question. Cruz then shut the person down.

As we can more than clearly see, Cruz is not only not eligible, but he is also not credible. Hence, this should be the campaign slogan that Trump should use against Cruz, on banners, posters, signs, etc.:

CRUZ, NEITHER ELIGIBLE NOR CREDIBLE!

Mario Apuzzo, Esq. said...

Mick,

You said:

"At birth" means "AFTER BIRTH". No one is naturalized in the birth canal or the womb.
The definition of birth is "the emergence of a baby from the body of it's mother". One second after the emergence is "AFTER BIRTH".
~~~~~

So what is your point?

cfkerchner said...

The petition campaign to expose and stop Ted Cruz's deception is now online!

Announcement and Update: Electronic Signing of Petition Campaign to Stop the Ineligible Canadian-Born Ted Cruz is Now Online & Active | CDR Kerchner (Ret)'s Blog
https://cdrkerchner.wordpress.com/2016/02/06/announcement-electronic-signing-of-petition-campaign-to-stop-the-ineligible-canadian-born-ted-cruz-now-online/ Buzz on by and give it a "test drive".

CDR Charles Kerchner, P.E. (Retired)
http://www.scribd.com/protectourliberty/collections/
http://www.protectourliberty.org

leo derosia said...

I watched the video when a 17 year old asked cruz about his credibility when he said he did not know he was a Canadian citizen so cruz ignores the question and then said he was a natural born citizen because his mother was born in the us and us law since the beginning has shown he would be a nbc by virtue of his mother being a us citizen which of course is a blatant lie. Cnn called him a flat out liar when he claimed they said that carson dropped out of race when all they reported is that carson was going to Florida for a few days r and r. The young man in video asked about his credibility not eligibility. O'Reilly pompously pronounced that ted being a Canadian was a bogus story. Earth to bill o, cruz actually was a Canadian citizen by being born there...b or cannot be that stupid

Unknown said...

In a previous article, 'New Hampshire Ballot Access Challenges Against Ted Cruz and Marco Rubio Fail for Want of Jurisdiction' (25 Nov 2015), Mario Apuzzo, Esq. wrote: "It is treason upon the Constitution and the rule of law to see our political institutions kick the can down the road under the guise of want of jurisdiction."
In the current case at issue, The Illinois Board of Elections and its appointed hearing officer did not kick the can down the road. The issue was before the Board as an objection to including Cruz on the ballot, filed by Lawrence Joyce on 06 Jan 2016. The candidate, R. Ted Cruz, argued in a motion dated 22 Jan 2016 that the Board should dismiss for want of jurisdiction, and also that the Objector had not adequately explained the objection to Cruz's inclusion. The hearing officer rejected those arguments. In his Opinion dated 28 Jan 2016, Hearing Officer James Tenuto stated findings including: The Objector's filing was timely and fully stated; the Board's scope of inquiry is not as limited as Cruz's motion had argued; the eligibility question is within the Board's scope of inquiry; and, in consideration of the facts around Cruz's birth and the language of Article II, Ted Cruz is a natural-born citizen eligible to be President.
The Hearing Officer recommended denying Cruz's motion to dismiss the objection, and denying the objection on the merits of the Article II argument. The Board's General Counsel concurred with the recommendation of the Hearing Officer, and the Board followed the recommendation. Thus we now have one on-the-merits ruling specifically about the Article II eligibility of Ted Cruz.

Mario Apuzzo, Esq. said...

Unknown,

I see that you are reading comprehension challenged. The whole point of my article is that the Illinois Board of Elections got it wrong in finding that Ted Cruz is a natural born citizen.

Unknown said...

Mario Apuzzo, Esq. wrote:
"The whole point of my article is that the Illinois Board of Elections got it wrong in finding that Ted Cruz is a natural born citizen."

I don't think anyone is going to believe that. In the article you exclude yourself from any serious debate over Cruz's eligibility by arguing that the actual President of the United States is not eligible to be President of the United States.

My point was that when you make such complaints as, "It is treason upon the Constitution and the rule of law to see our political institutions kick the can down the road under the guise of want of jurisdiction", there is an implicit assumption that you would be more satisfied if authorities decided on what you consider the "merits". Never happens that way.

Mick said...

Mario Apuzzo, Esq. said...
Mick,

You said:
"At birth" means "AFTER BIRTH". No one is naturalized in the birth canal or the womb.
The definition of birth is "the emergence of a baby from the body of it's mother". One second after the emergence is "AFTER BIRTH".
~~~~~

So what is your point?"


The point is that the argument that "citizen at birth" is the same as nbC is a mere parsing of words that doesn't mean anything. They say that "there was no naturalization process" (well duh, because they were naturalized by statute), and that they were citizens "at the moment of their birth" --- referring to the definition of NA 1852 (23), that "naturalization" means the conferring of nationality upon a person AFTER BIRTH by any means whatsover.

They are claiming that since naturalization by statute is "AT BIRTH" they are not naturalized because by definition it must occur "AFTER BIRTH".

The point is that "AT birth" is "AFTER birth". there is no distinction. The moment the person emerges from the mother is AFTER BIRTH. They would not be naturalized before the emergence from the mother, i.e. AFTER birth.

It goes back to this 7FAM regulation added by Obama Admin. in 8/2013

7 FAM 1131.6-3 Not Citizens by “Naturalization”
(CT:CON-474; 08-19-2013)
Section 101(a)(23) INA (8 U.S.C. 1101(a)(23)) provides that the term "naturalization" means "the conferring of nationality of a state upon a person after birth, by any means whatsoever." Persons who acquire U.S. citizenship at birth by birth abroad to a U.S. citizen parent or parents who meet the applicable statutory transmission requirements are not considered citizens by naturalization.

They are trying to say that "at birth" is different from "AFTER birth", when they mean the same thing. Don't play their little word games.

Mario Apuzzo, Esq. said...

Unknown,

You continue to post comments that do not mean anything.

William St. George said...

Ted Cruz found it easier to lie about the Constitution and American history than about his ignorance of his Canadian citizenship. I find that interesting. He also had to display rudeness to a young person. We might as well have another Obama term than Cruz! I see Cruz as a fairly unpleasant type who probably starts quarrels rather easily and has a too high opinion of himself. He would be a very bad choice for a president. At least Obama usually displays a fairly personable presentation even if he is about as foggy minded as they come.
Worst of all Cruz could never be trusted.

Mario Apuzzo, Esq. said...

William St. George,

It is simply amazing that Cruz would have the audacity to lie to the entire world when he said that he did not know that he was a Canadian citizen. Just think, with knowledge that he was born in Canada, with knowledge that he lived in Canada until moving to the U.S. when he was four years old, with knowledge of his father's family background and the Cuban experience, with knowledge that his father Cuban Rafael Cruz earned Canadian citizenship in 1973 and ultimately became a naturalized U.S. citizen in 2005, being a lawyer, being a U.S. Senator, being one who was aspiring to be President, and he wants us to believe that he did not know that he was a citizen of Canada?

One of the requirements to be President is being a natural born citizen. Cruz would have known of the general public understanding that one has to be born in the United States to be eligible to be President. Assuming he did not know about the issue of whether Chester Arthur was born in Canada, he would of known of the natural born citizen question involving George W. Romney, who was born in Mexico, and Barry Goldwater who was born in the Arizona territory before it became a state. He would have known of the 2008 eligibility question involving John McCain, who was born in Panama. Are we to believe that Cruz would not have asked himself where he was born so that he could assure himself that he was eligible to be President? Cruz has never maintained that he believed that he was born in the United States. So then where? And not a citizen of that nation when he knows that generally anyone born in the United States is a citizen of the United States at birth? In his mind, would not the same be true of Canada?

Additionally, if Cruz had wanted any type of security clearance, he would have had to disclose that he was a dual citizen, with citizenship in the U.S. and Canada. Dual citizenship is a red flag for any type of high security clearance. Cruz served as, among other things, Chairman of the United States Senate Commerce Subcommittee on Space, Science and Competitiveness. I assume that a security clearance would be needed to serve as Chairman of such a sensitive committee. Even if it is not needed for that particular committee, you get the point.

With all this baggage, we can come to know why Cruz cut off, evaded, and dismissed that 17-year-old young man who asked him during that town meeting how it could be that he did not know he was a citizen of Canada. Put this incident together with Cruz's telling us that his eligibility to be President is a "settled" question, and you have a nice snapshot into Cruz's character.

Bill G said...

http://www.capitolhilloutsider.com/ted-cruz-is-not-a-legal-u-s-citizen-at-all/

Mr Apuzzo: Wonder how you view J B Williams' suggestion that Cruz may not be a U S Citizen given that Canada disallowed dual citizenship and that Cruz apparently claimed to have never gone through any naturalization procedure?

Mario Apuzzo, Esq. said...

Bill G,

I do not agree with J.B. William's misquote and misrepresentation of Emer de Vattel. I do not agree with his position that it is only a citizen father, regardless of the mother's citizenship or where the child is born, that determines whether a child is an Article II natural born citizen. I also do not agree with him that Ted Cruz is the citizen of no nation. If Canada did not allow for dual citizenship, Cruz would still have been a citizen of the United States at birth under U.S. law, provided he satisfied all conditions of the Immigration and Naturalization Act of 1952. Foreign nations do not control how we apply our U.S. naturalization laws.

William St. George said...

Moving on to Rubio--would he have also become a Cuban citizen at birth? For that matter did Cruz acquire Cuban citizenship through his father? This is a terribly complex subject. While we realize that neither qualifies for the presidency many people just go by what they hear on Fox, NPR, the NYT, etc. To simplify, many now accept that a NBC may also be a dual citizen which is the very strange outcome which persons like Cruz, Obama and Rubio have brought about. This would clearly defeat the whole point of John Jay's concern. Today on the radio someone brought up the idea that George H. W. Bush's father may have been a German alien who pulled off being a native born American. I have come across that story before. If anything Jay's warning and concern are even more relevant than ever given the anti-sovereignty thinking of the Elite. A New World Order -- a truly monstrous idea, the draw backs of which we are seeing in miniature with the EU.

Mick said...

I don't know if you have ever commented on this Mr. Apuzzo, but I have seen absolute proof that NA 1802 S. 4 covered the children of aliens born in the United States, naturalizing them upon the naturalization of the parents "if dwelling in the United States."

It is the Congressional Globe of the 28th Congress, pg. 129, June 1845. Romulus Saunders, Chairman of the House Judiciary Committee giving a synopsis of the first 50 years of Naturalization law of the Republic. In it he absolutely says that S. 4 covers the children of aliens born in the US, and those born abroad. Right hand column near the top.

https://books.google.com/books?pg=PA129&dq=congress+globe+1845&ei=VytzTfSfBoGDgAe3vfjjBw&ct=result&sqi=2&id=YWEUAAAAYAAJ&hl=en#v=onepage&q=congress%20globe%201845&f=false

This is proof that, if born IN 1802, Marco Rubio would not have been considered a US Citizen until he was naturalized by the naturalization of his parents. Therefore he is only considered a US Citizen at birth today by US naturalization statutes. Therefore he is NATURALIZED, not natural born, and not eligible.

Harry said...

I am writing due to the despicable manner in which Cruz dismissed the 17-year old young man who asked about his Canadian citizenship and want to get my oar in the water in opposition to Cruz as much as possible since he is lying about his NBC status.

Cruz situation is very similar to that of my own son who was born a Belgian citizen in Belgium to a Belgian citizen mother. I went to US Consulate and filled out paper work to “claim” my son’s US citizenship through me as his US citizen father. After providing all the necessary proof documents – and fulfilling certain “statutory requirements” - my son was issued a Report of Birth Abroad of a Citizen of the United States of America or Form FS-240 designating him a US citizen. In addition, my son has a Form FS-545 Certification of Birth Abroad of a Citizen of the United States of America. Each document refers to him as a “citizen.”

Cruz was born a Canadian citizen in Canada. In order for Cruz to “claim” US citizenship through his US citizen mother, she would have had to go through the same process I did. If Cruz is a US citizen he must have a Form FS 240 and Form FS 545. If so, Cruz is a citizen, not a NBC.

Examples of documents required are as follows:

Evidence of U.S. Citizenship
Precise Periods of Physical Presence in the United States
Precise Periods Abroad in U.S. Armed Forces
Photocopy of parents’ marriage certificate with English translation
Photocopy of child’s Belgian birth certificate with English translation

A NBC does not have to fulfill any “statutory requirements” to become a NBC. It happens automatically via the simple definition of NBC.

Cruz cannot possibly be a “natural born citizens” and is ineligible to serve as President of the United States. (Obama, Rubio and Jindal are also ineligible.)

Would like to close with a brief anecdote: Yesterday my wife met a friend she had not seen for some time. She learned that the woman’s two daughters had been on a Christian mission in Kenya. Natives were happy to meet the two young ladies from America. The natives were all excited because -- “your President was born here.”

Carlyle said...

FWIW

Cruz: His momma is natural born. Thus, so is he.
February 11, 2016
It's as simple as that, folks.


http://www.americanthinker.com/blog/2016/02/cruz_his_momma_is_natural_born_thus_so_is_he.html

Maybe they would publish something of yours, if you submitted it?

Kanbun said...

Anybody that subscribes to American Thinker logic is light in the loafers. It is simply incredible that somebody just makes it up and people go along because it suits their agenda. Put aside that the "naturalization" act referred to was wrong and repealed - let that go - the AT essay actually decides that "parents" is not plural, but singular. How stupid can you be to see that manipulation right before your eyes and then to go along with it anyway.

Mario Apuzzo, Esq. said...

I of II

Mick,

I was not aware of that 1845 report on naturalization provided by Romulus Saunders, Chairman of the House Judiciary Committee, which you have shared with us here. Nice find. If further confirms what I have been arguing for years that, as nicely demonstrated by how the James Madison Administration resolved the 1811 citizenship case of James McClure, as is evidenced by the plain text of those acts, the early naturalization Acts of Congress (1790, 1795, 1802, 1804, and 1855) applied to children born both in and out of the United States. Even though James McClure was born in the United States in 1785, the James Madison Administration ruled that the 1802 Act applied to him and made him a "Citizen" of the United States after his birth, when his British father naturalized during his son's minority and when his son was dwelling in the United States.

One gem from Publius (probably Madison), who expressed a public opinion on McClure's citizenship in the newspapers of the time:

“Mr. Rodman hints, that it would have been sufficient for James McClure to have been born in the United States—he is mistaken. The law of the United States recognizes no such claim. The law of Virginia, of 1792, does—for, “all free persons born within the territory of this commonwealth,” is deemed a citizen. The law of Virginia considers him as a son of the soil. An alien, as well as a citizen, may beget a citizen, but the U. States’ act does not go so far. A man must be naturalized to make his children such.”

And if you want more evidence that the naturalization Acts of Congress applied to children born in the United States, here is Nathan Dane, the father of American jurisprudence. Here is how Dane explained American national law on citizenship:

“By the Acts of Congress of March 26, 1790, and January 29, 1795, an alien father being naturalized, his children under twenty-one years of age, dwelling in the United States, cease to be aliens and become citizens. Citizens of the United States having their children born beyond sea, are as natural born citizens. But the right of citizenship is not to descend to persons whose fathers never have been resident in the United States.”

4 Dane’s Abridgement, ch. 131; art. 2, § 2, 698 (1824). Dane did not given any importance to whether a child born to an alien father was born in or out of the United States. He made no mention of the place of birth because it was not relevant when the father was an alien. Any children born to alien parents were alien born. Dane later explicitly confirms this rule in Section 8 of his treatise. Also, Dane said of children born out of the United States to U.S. citizen parents that under the Naturalization Act of 1790 they “are as natural born citizens.” He did not say that they “are natural born citizens.”

Dane confirmed that after the American Revolution, children born in the United States to alien parents were alien born. In Section 2, Dane fully explained Calvin’s Case and the English common law jus soli rule of acquiring the status of a natural-born subject in England. But then he goes on to explain what the American common law rule was. He stated:
“And now if an American citizen goes abroad and marries an alien wife, and have a child by her in a foreign country, that child is not alien, but may inherit his estate in the United States. But if an American woman, a citizen, go abroad and marry an alien husband, and have a child by him, so born, that child is an alien, and cannot inherit her estate in the United States. And upon the same principles, if an English subject comes into the United States, and marries an American wife, and has a child by her born here: it cannot inherit her estate here, because this child follows the allegiance of its father, and may inherit his estate in England.”

Id. § 8, at 701.

Continued . . .

Mario Apuzzo, Esq. said...

II of II

As we can see, as confirmed by these authorities, now including Rep. Romulus Saunders, the early naturalization Acts treated children born in the United States to alien parents as aliens at birth and in need of naturalization. Dane also explains how a child born out of the United States to an alien father was an alien.

As I have said, the early naturalization Acts, as confirmed by these authorities, prove how the Framers defined a natural born citizen, which was a child born in the United States to U.S. citizen parents, for that was the only person upon whom early Congress did not act with its naturalization laws. These early Acts are conclusive evidence that the Framers defined a natural born citizen as a child born in the country to citizen parents. It is false to maintain that the Framers did not tell us how they defined a natural born citizen. They told us in these very naturalization Acts. These acts conclusively prove that the Framers viewed someone like Barack Obama, Ted Cruz, Marco Rubio, Bobby Jindal, and Nikki Haley as alien born and in need of naturalization, a far cry from being natural born citizens.

Mick said...

Yes Mr. Apuzzo, Saunders, when speaking specifically about NA 1802, says "it further provides for the children of aliens, whether born within or out of the United States." That one sentence proves the whole thing. Checkmate. This is is the chairman of the Judiciary Committee of the body that has the power to enact naturalization law, within the first 60 years of the Republic. If the children of aliens were not citizens upon birth in the United States in 1802, then those same children born today are only considered such because of US naturalization law, i.e. they are naturalized.
I could never find a court case or anyone with the authority of Romulus Saunders that said that specifically. The Obots always maintained that "if dwelling in the United States" did not cover children BORN IN the US of alien parents. Even though there are a few court cases that were about foreign born children of those naturalized in the United States (if the proviso was about foreign born then why would the SCOTUS need to hear it?), and the disposition of the cases was that the proviso covered them.

Mick said...

There is a court case that says the same as Romulus Saunders. I missed it the first time I read the case.

Zartarian v. Billings, 204 U.S. 170, @ 172-175 (1907) *******VERY IMPORTANT*******


"The limitation to children "dwelling in the United States" was doubtless inserted in recognition of the principle that citizenship cannot be conferred by the United States on the citizens of another country when under such foreign jurisdiction,
and is also in deference to the right of independent sovereignties to fix the allegiance of those born within their dominions, having regard to the principle of the common law which permits a sovereignty to claim, with certain exceptions, the citizenship of those born within its territory".

CHECKMATE. Now there is Romulus Saunders AND the Supreme Court saying that Sec. 4 of NA 1802 applies to those BORN IN THE US of aliens who subsequently naturalized. Which means that Rubio cannot possibly be a natural born Citizen.

In Campbell v. Gordon, 10 U.S. 6 Cranch 176 176 (1810) the disposition was also directly on point, and said that the child of an alien born abroad would also be naturalized "if dwelling in the US" in her minority after the time of her father's naturalization.

If S. 4 of NA 1802 applied solely to the children of those born abroad there would not need to be a SCOTUS case about it. There are no cases I can find with the question of domestically born children of aliens--- because OF COURSE the statute was directly applicable to them. There was no need for a case.

Mick said...

More from Zartarian v. Billings

"The Department seems to have followed a rule established at an early period, and formulated with fullness in Foreign Relations for 1890, p. 301, in an instruction from Mr. Blaine to Minister Phelps at Berlin, in which it was laid down that the naturalization of the father operates to confer the municipal right of citizenship upon the minor child if at the time of the father's naturalization dwelling within the jurisdiction of the United States, or if he come within that jurisdiction subsequent to the father's naturalization and during his own minority.

Whether in the latter case a child not within the jurisdiction of the United States at the time of the parent's naturalization, but coming therein during minority, acquires citizenship is not a question now before us". @174

Carlyle said...

@kanbun

Maybe you should submit your comment to AT. Maybe they will post it on their blog?

Mario Apuzzo, Esq. said...

Mick,

You said: "I could never find a court case or anyone with the authority of Romulus Saunders that said that specifically." Are you forgetting the James McClure Citizenship Case of 1811 and its resolution by the James Madison Administration, and Nathan Dane?

Also, for your information, the false reading of the early Naturalization Acts was started by Lynch v. Clark, 1 Sandf.Ch. 583 (1844). The court said that the English common law jus soli rule would have no effect in the United States if Congress passed any Act abrogating it. Then when it came to interpreting the early naturalization Acts which were cited and relied upon by the plaintiff as evidence that a child born in the United States to alien parents was alien born and in need of naturalization, the court gave a baseless, twisted, incorrect, and fallacious (it begged the question) interpretation of the Acts, saying they did not apply to children born in the United States because they were already citizens of the United States. In my humble opinion, the court gave such a wrong interpretation for the sole purpose of justifying its conclusion that a child born in the United States, even to aliens who were temporarily present, was a citizen of the United States, and in dictum also a natural born citizen. While Minor v. Happersett (1875) made no reference to Lynch and in any event overruled it, Wong Kim Ark (1898) drew heavily from it to find that Wong was a "citizen" of the United States at birth by virtue of the Fourteenth Amendment (not by virtue of the common law that defined a natural born citizen). What shows Lynch to be wrong, among many things, is that it took the Fourteenth Amendment to make Wong, born in the United States to alien parents, a "citizen" at birth, not to be conflated, confounded, and confused with a natural born citizen. In fact, Wong Kim Ark did not hold Wong to be a natural born citizen.

Mick said...

Mario,

I remember the McClure case. So now there are 3 authorities which state that S. 4 NA 1802 applied to domestically born children of aliens.

And remember, WKA DID NOT say that US citizens are simply born in the US. It said that with regard to British subjects, born within the realm. With regard to US Citizens and WKA Gray had to rely on the legal residence of the parents to make them "subject to the jurisdiction of the US within the meaning of the 14th Amendment."(See WKA @693). Gray also agreed with the "common law" ("resorted to the common law" ) reading from Minor v. Happersett, even after citing the definition that required citizen parents, which clearly means that the definition does not come from BCL. (See WKA @ 655).

Have you ever seen the Zartarian v. Billings case? It was like a bolt of lightening to me. It is also a SCOTUS case more than 60 years after the Lynch circuit court case.

Mick said...

Mario,

For your information, Florida has a statute that says that the BCL is "in effect" except where it conflicts with the Constitution of the US.

"2.01 Common law and certain statutes declared in force.—The common and statute laws of England which are of a general and not a local nature, with the exception hereinafter mentioned, down to the 4th day of July, 1776, are declared to be of force in this state; provided, the said statutes and common law be not inconsistent with the Constitution and laws of the United States and the acts of the Legislature of this state".

Mario Apuzzo, Esq. said...

I of II

Mick,

From my article that I published at this blog on September 1, 2011, “A Common Sense Definition of a “Citizen,” showing comments by atticus finch and my response:

atticus finch said...

Puzo1 wrote: "Fifth, the Constitution gave Congress the power to make uniform the naturalization laws. Congress, in its naturalization acts since 1790 to 1855 did not make any exception for children born in the United States."

Response:

The Naturalization Acts did not apply to children born in the United States of aliens parents for the simple reason that it only applied to foreign born persons.
"this power granted to Congress to establish an uniform rule of naturalization is, by the well-understood meaning of the word, confined to persons born in a foreign country, under a foreign Government.", Dred Scott v. Sandford, 60 US 393, 417 (1857).

Applying the rationale in the Dred Scott case, children born in the United States to alien parents were not born in a foreign country under a foreign government.

In his dissent in the Dred Scott decision, Justice Curtis understood that the naturalization acts were used to remove the disability of foreign birth when he observed:
"Among the powers expressly granted to Congress is "the power to establish a uniform rule of naturalization." It is not doubted that this is a power to prescribe a rule for the removal of the disabilities consequent on foreign birth. To hold that it extends further than this, would do violence to the meaning of the term naturalization, fixed in the common law, . . . It appears, then, that the only power expressly granted to Congress to legislate concerning citizenship, is confined to the removal of the disabilities of foreign birth. Scott v. Sandford, 60 U.S. 393, 578 (Curtis, J,., dissenting) (internal citations omitted)

The Supreme Court Court in Zartarian v. Billings, 204 US 170(1907) noted that absent native birth in the United States, a child born overseas needed to be naturalized. "As Mariam was born abroad, a native of Turkey, she has not become a citizen of the United States, except upon compliance with the terms of the act of Congress, for, wanting native birth, she can not otherwise become a citizen of the United States. Her right to citizenship, if any she has, is the creation of Congress, exercising the power over this subject conferred by the Constitution." Id at 173

As such, Naturalization Acts had only applied to those of foreign birth and not to native born children of foreigners seeking to be naturalized.

September 7, 2011 at 4:20 PM

Mario Apuzzo, Esq. said...

II of II

Puzo1 [Mario Apuzzo] said...

Atticus finch,

Your argument is not persuasive.

First, the statement of the Dred Scott Court is dicta, for there is no in-depth analysis or support for what it said. Second, your argument fails to recognize that Dred Scott said that Congress could only naturalize the “foreign born” and hence had no power to naturalize someone born in the United States because the Court ruled that blacks were not citizens and therefore did not want Congress to have the power to naturalize them. Third, Congress can decide whether one is “foreign born” or not. From the text of the early naturalization acts, we can see that Congress considered children born in the United States to alien parents as “foreign born,” even though they were physically born in the United States.” Also, consider that American Indians, children of ambassadors, and children of invading armies have also been treated under our laws as “foreign born” even though born in the United States. Fourth, Congress surely did not agree with the Dred Scott Court when it said that it had no power to naturalize persons born in the United States, for it passed the Civil Rights Act of 1866 which declared all person born in the United States and not “subject to any foreign power” “citizens” of the United States. There is no power in the Constitution granted to Congress concerning citizenship other than naturalization powers. Hence, the civil rights legislation had to be grounded on Congress’s naturalization powers. Moreover, to drive home the point, Congress went further and even constitutionalized the Civil Rights Act of 1866 through the Fourteenth Amendment. Fifth, even after passage of the Fourteenth Amendment, Congress can not only utilize Section 5 of the Amendment to enforce the amendment, but it can also continue to exercise its naturalization power over persons born in the United States by telling us what “subject to the jurisdiction thereof” means.

Also, the Zartarian quote is misplaced. What the Court there said is that if one cannot show that he or she is a citizen from birth by being born in the United States and “subject to the jurisdiction thereof,” then citizenship can only be granted by Congress through a Congressional Act. But this does not mean that Congress does not have power to naturalize persons born in the United States. It only means that if one is not a “citizen” of the United States by birth in the United States, which automatically and without any further need for naturalization grants that national character upon a person from the moment of birth, then one to acquire such citizenship will have to rely upon a Congressional Act and comply with all its requirements.

September 7, 2011 at 5:22 PM

http://puzo1.blogspot.com/2011/09/common-sense-definition-of-citizen-and.html

William St. George said...

If Congress had never at any time passed any legislation regarding citizenship would Ted Cruz still be an American citizen? I think the answer is no. Would the 14th Amendment have made Ted Cruz an American citizen? Again the answer is no. What acts of Congress were necessary in order for Cruz to be an American citizen? Naturalization acts. So in that case Ted Cruz is an American citizen due to a naturalization act. Ted Cruz is a naturalized American citizen. In that case he can be either a US Senator or Representative since that only requires that he be a citizen. But to be president he needs to be a Natural Born Citizen. Is a natural born citizen the same as a naturalized citizen? It seems highly unlikely. In 1789 "natural born citizen" could hardly have meant any citizen regardless of how a person became one. Part of confusion has to do with the word "natural" which most persons will mis-interpret in this context in several different ways. My understanding is that it has to do with natural law. So a natural born citizen would be one who is a citizen according to natural law rather than positive law which would be something like a naturalization act. Surely Cruz has enough education to realize that he is not a natural born citizen; so just like Ben Carson had dropped out of the race at the time of the Iowa caucus, so Ted is a natural born citizen, i.e. a little lie won't hurt, will it? There are at least two court challenges in progress now contesting Cruz's eligibility. It will be interesting to see how the courts wiggle with these.

The 14th Amendment indicates the importance of place in determining citizenship.
Being born in the USA with certain provisos makes one a citizen without naturalization a factor. Cruz wants having at least one parent and born anywhere outside the USA sufficient to confer the same type of citizenship--that is, independent of naturalization. Cruz is giving great power to parental citizenship. However, no mention has been made of his father's citizenship giving him Cuban citizenship, natural born Cuban citizenship? So even skipping the natural born citizenship with Canada does he not still retain Cuban citizenship? No one has weighed in on this so far. To me it looks like Cruz was born with triple allegiance.

If the Constitution could not be amended I might be a little more open to the idea of a "living constitution" despite the fact that it makes little sense as an idea. But since it can be, it can grow via amendment. Otherwise, no one would ever know for sure what the Constitution meant because it might have grown over night into a very different document. A living Constitution is the attorneys' desperate hope when something they want is blocked by the Constitution, and they think if only it would just grow a little I could have my way. With Obama it became all about place, Kenya, Indonesia, America?; now with Cruz it is all about parents. So that is a good thing. Put together we get parents plus place equals natural born citizen!

Robert Pilchman said...


https://twitter.com/realDonaldTrump/status/698231571594276866 : "If @TedCruz doesn’t clean up his act, stop cheating, & doing negative ads, I have standing to sue him for not being a natural born citizen."

Mick said...

Mario,

I am not understanding what you say here:

"As such, Naturalization Acts had only applied to those of foreign birth and not to native born children of foreigners seeking to be naturalized".

How does that square with what Romulus Saunders said about "providing for the children of aliens born domestically and abroad." (sic)

Mario Apuzzo, Esq. said...

Mick,

I had argued in my article that the early naturalization Acts applied to children born in or out of the United States. Atticus finch posted his comment in which he sought to show that I was wrong. He said:

"As such, Naturalization Acts had only applied to those of foreign birth and not to native born children of foreigners seeking to be naturalized."

Hence, I did not say that. That is what atticus finch said which I then refuted as being wrong.

Mick said...

From Zartarian v. Billings
"The Department seems to have followed a rule established at an early period, and formulated with fullness in Foreign Relations for 1890, p. 301, in an instruction from Mr. Blaine to Minister Phelps at Berlin, in which it was laid down that the naturalization of the father operates to confer the municipal right of citizenship upon the minor child if at the time of the father's naturalization dwelling within the jurisdiction of the United States, or if he come within that jurisdiction subsequent to the father's naturalization and during his own minority". 204 US 170, 177 (1907)

This passage refers to the case of a Mr. Heisinger, born in Philadelphia, where Sec. of State James Blaine is explaining US naturalization law to German Minister Phelps. Blaine a 2 term Sec. of State applies NA 1802 S. 4 to the naturalization of the domestically born Heisinger, who was born in Philly 6 months prior to his father's naturalization.

The full exchange is here, pg. 207-210 (Dyne, Treatise on the Law of Naturalization in the US)

https://books.google.com/books?id=l-8rAAAAIAAJ&pg=PA204&lpg=PA204&dq=Prof.+Moore%27s+Digest+of+International+Law,+Vol.+3,&source=bl&ots=2s5OZqnFQJ&sig=KOhTq3rLoirz96AHnVLq1uYCMZQ&hl=en&sa=X&ved=0ahUKEwiXzIbr_vTKAhVJmR4KHbBIAAIQ6AEIKjAC#v=onepage&q=Prof.%20Moore's%20Digest%20of%20International%20Law%2C%20Vol.%203%2C&f=false


cfkerchner said...

A Simple Euler Logic Diagram Shows Logical Relationship of Constitutional Article II “natural born Citizens” to Other Type “Citizens” of the United States | CDR Kerchner (Ret)'s Blog: https://cdrkerchner.wordpress.com/2016/02/14/euler-logic-diagram-shows-logical-relationship-of-constitutional-article-ii-natural-born-citizens-to-other-type-citizens-of-the-united-states/ CDR Kerchner, P.E. (Retired)

William St. George said...

As far as I can determine Ted Cruz wants us to believe that the original Constitution if properly interpreted already made him a natural born citizen. Thus no acts of Congress were necessary in his case since his mother being a citizen alone did the job. If Cruz had lived in the early years of the 19th century he could have been a candidate for President and no one could legitimately have objected? This is fantastic indeed.

In the case of Chester Arthur I believe later on there was a question of if his father had been a naturalized citizen at the time of Arthur's birth. I think a few years back someone located the naturalization paper which showed that Arthur's father was not a citizen at the time of Arthur's birth. So Arthur was not qualified to be President after all. He nominated Horace Gray to the Supreme Court, a Justice whose name keeps coming up regarding who is a natural born citizen.

ajtelles said...

Awesome...

Mario,

Two points.

First, your current article, and second, a question about former Supreme Court Justice Antonin Scalia's possible thoughts about Fourteenth Amendment citizenship as expressed by his co-author of "Reading Law: The interpretation of Legal Texts" that was published in 2012 by Thomson/West.

This article is awesome, and, in my opinion, will be considered in the future to be seminal when constitutional "scholars" get a clue about "at birth" and "by "birth" as you wrote in the section about the Fourteenth Amendment:

>> "A natural born citizen is a citizen of the United States “by birth” alone ["alone" is underlined in your article] and necessarily becomes a citizen "at birth." "

Of course, the "at" and "by" implications are present in your entire article.

<<>>

Since no constitutional "scholars" visit your blog to debate you on the broad or fine points, I thought you might like to read what Justice Antonin Scalia's co-author, Bryan Garner, wrote about citizenship that was published at The Atlantic.

Memorandum: Is Ted Cruz Eligible for the Presidency?
A legal scholar offers a thorough look at a complicated question

>> http://www.theatlantic.com/politics/archive/2016/01/ted-cruz-eligibility-memo/424206/#article-comments

"The conventional thought is that there are three paths to citizenship:
(1) birth within a territory (traditionally known as jus soli);
(2) naturalization; and
(3) blood rights:
the status of being the child of a citizen, even if born outside the territory (traditionally known as jus sanguinis).2

"The U.S. Constitution appears to contemplate only the first two categories—not the third, which was created in 1790 by federal statute, one year after the Constitution was ratified."

Garner's Article II expansionist and living constitution conclusion is in the last paragraph:

"All in all, it seems highly likely that the Supreme Court would today hold that the foreign-born child of a mother-citizen is eligible for the Presidency under Article II of the Constitution."

Oh well, Mario, "all in all" it seems that "WE the People" still have a lot of work to do to educate the constitutional "scholars" so that they will know in which direction to lead us.

Art
Original-Genesis-Original-Intent.blogspot.com

Mario Apuzzo, Esq. said...

William St. George,

Chester Arthur's mother was a citizen of the United States and his father a British natural born subject. Note that Attorney A.P. Hinman's argument in Chester Arthur's case was that since he was born in Canada, he was not a natural born citizen and therefore not eligible to be Vice-President and President. No one argued that even if Arthur was born in Canada, he was a natural born citizen. Why does Cruz believe that the Chester Arthur case does not apply to him? What ever happened to what Cruz calls "settled" law which makes him a natural born citizen?

Mario Apuzzo, Esq. said...

ajtelles,

Thanks as always to you. I like this in the Garner article. He tells us: "I wrote it over the course of the day."

ajtelles said...

Bryan Garner redux...

Mario,

In the The Atlantic article by Prof. Garner that I mentioned yesterday, February 14, 2016 at 10:00 PM, there are some comments by Warren Norred, Esq. about John Jay and Emer de Vattel.

After his comments on The Atlantic that I include below is his response to me yesterday after I suggested that he visit your blog, specifically your current article.

Mr. Norred is an Arlington Patent, Business, Bankruptcy, and Litigation Attorney.

Since it seems that Mark Levin is not serious about taking on, as he said on the radio, to take on "all comers" in debating "natural born Citizen" and Sen. Cruz's eligibility, maybe Mr. Warren Norred, Esq., if he visits your blog, will engage with you, and, for one example, make an attempt to rebut and refute your excellent articulation of Article II Section 1 clause 5 and the Fourteenth Amendment as you wrote in this article, and how, these are my words, the positive law (statute)"at birth" and natural law (nature)"by birth" alone relate to both parts of the U.S. Constitution that mention "born" in references to being a U.S. "natural born Citizen" and a U.S. "citizen" and a "citizen" of the states in which they reside.

<<>>

Partial quote #1 -

"Those quibbles aside,
"I'm pleased that Mr. Garner concludes with the reality that
"the modern jurisprudence would reject a gender-based analysis
"and allow Cruz his time in the White House,
"if he is able to garner the electoral votes."

"(I wrote a whole article on the Ted Cruz eligibility question, focused mostly on the Birther arguments at
>> https://norredlaw.com/2015/04/13/natural-born-citizen/#comment-33289

Is Ted Cruz a Natural-Born Citizen? Yes.
Natural-Born Citizenship and the Constitution

Partial quote #2 on The Atlantic -

"As Mr. Garner no doubt knows,
"the "natural born citizen" language
"was added almost absentmindedly
"in the middle of the constitutional convention
after prodded by a letter from John Jay,..." [he quotes Jay's entire note]

Partial quote #3 on The Atlantic -

"Vattel's definition does not control here.
"I've written an entire article just for people like you [a commentator on The Atlantic],
"who think that they have some sort of secret higher understanding of the law: https://norredlaw.com/2015/04/13/natural-born-citizen/#comment-33289

<<>>

Here is Mr. Norred's comment to me on his site about Vattel in which he mentions you:

"Art, thanks for the reference.
"Of course, Mario is making the same mistake
"in adopting Vattel's definition as authoritative and unchanging,
"when Vattel himself said it was dependent on national laws regarding such matters.

"But I was unaware of the Illinois Board's ruling."

<<>>

Mario, Mr. Norred wrote his defense of Sen. Cruz's eligibility last year, ten months ago, April 13, 2015 [ https://norredlaw.com/blog-history/ ], so, being an Esquire, he probably would not mind getting some comments other than my comment which is the only one there.

Art
Original-Genesis-Original-Intent.blogspot.com

William St. George said...

"US Government Ruling From 1885 by Secretary of State Thomas Bayard Proves Chester Arthur’s British Birth Was Kept From Public."
https://naturalborncitizen.wordpress.com/2009/09/09/us-government-ruling-from-1885-by-secretary-of-state-thomas-bayard-proves-chester-arthurs-british-birth-was-kept-from-public/

"The Holy Grail of POTUS Eligibility Law Review Articles: Mr. Obama and Mr. Arthur… Meet Attorney George Collins"
https://naturalborncitizen.wordpress.com/2009/08/25/the-holy-grail-of-potus-eligibility-law-review-articles-mr-obama-and-mr-arthur-meet-attorney-george-collins/

Several interesting articles by legal scholar who agrees with Mario Apuzzo. If Shakespeare's Hamlet were subjected to a "living Constitution" interpretation what kind of play would we end up with? Actually scholars are at pains to determine exactly what each word and expression meant at the time of Shakespeare; a scholar who started inventing new definitions would lose status quickly!
Surely the Constitution deserves equal respect and treatment.

Mario Apuzzo, Esq. said...

I of II

Art,

Attorney Warren Norred said: "Art, thanks for the reference. Of course, Mario is making the same mistake in adopting Vattel's definition as authoritative and unchanging, when Vattel himself said it was dependent on national laws regarding such matters."
~~~~~

Let's examine this statement. First, the historical and legal record demonstrates beyond any doubt that Vettel was and still is "authoritative" when interpreting the Constitution. So Warren fails there.

Second, Vattel defined a natural born citizen. The historical and legal record demonstrates that the definition of a natural born citizen has never changed in the United States. That definition has been and continues to be a child born in a country to parents who were its citizens at the time of the child's birth. Minor v Happersett (1875); U.S. v. Wong Kim Ark (1898). The Framers adopted that definition into the Constitution. The Constitution has never been amended in that regard. Therefore, the definition of a natural born citizen has been "unchanging." So warren fails there, too.

Third, Warren says that Vattel himself said "it" was dependent on national laws regarding "such matters." What Warren get wrong is that "it" referred to whether a child born out of the country to citizen parents was to be considered a citizen. Vattel explains it in Section 215:

§ 215. Children of citizens born in a foreign country.

It is asked whether the children born of citizens in a foreign country are citizens? The laws have decided this question in several countries, and their regulations must be followed.(59) By the law of nature alone, children follow the condition of their fathers, and enter into all their rights (§ 212); the place of birth produces no change in this particular, and cannot, of itself, furnish any reason for taking from a child what nature has given him; I say "of itself," for, civil or political laws may, for particular reasons, ordain otherwise. But I suppose that the father has not entirely quitted his country in order to settle elsewhere. If he has fixed his abode in a foreign country, he is become a member of another society, at least as a perpetual inhabitant; and his children will be members of it also.

Continued . . .

Mario Apuzzo, Esq. said...

II of II

Vattel asked whether that foreign-born child was a "citizen," not whether that child was a "natural born citizen." Vattel explained that the municipal laws of the child's parents' nation had to be followed when determining whether that foreign-born child was a citizen of his parent's nation. In other words, if those laws said that such a child was a citizen, then the child was. If those laws said that the child was not or did not provide for such a child, then the child was not. Vattel added that by nature alone, the place of birth could not take away from the child what nature had given to the child, and that such a child inherited from his or her parents (through the father) their citizenship. But Vattel explained that the laws of nature applied to the affairs of nations became the law of nations. Vattel’s law of nations parents did not live in a state of nature, but rather in civil and political society. Hence, Vattel added that the child's parents' nation, for various reasons, could pass political or civil laws which would take precedent over what nature ordained. Vattel also explained that the parents would not have quitted their native country and if they did, their child would not inherit their native citizenship. If the parents would have become permanent inhabitants of the foreign nation, then a child born to them in the foreign nation would inherit from them the status of a permanent inhabitant, not that of a citizen of their nation. This principles also applied to Vattel's Section 212 natural born citizen, requiring that the child be born in the country to parents who were its citizens and if not, then not even a citizen of that nation in which born. You will note that Congress in the early naturalization Acts treated children born in the United States to alien parents as aliens and in need of naturalization.

In Section 215, Vattel was talking about a nation's positive laws making citizens of children born out of the country, not making natural born citizens of those children. In referring to those foreign-born children, Vattel did not in the least suggest that the citizenship status that their parents’ nation may bestow upon them through its positive laws would somehow change the definition of a natural born citizen. The changing definition of citizenship of which Vattel spoke in Section 215 referred only to children born out of the country who Vattel saw as citizens, not as natural born citizens. Surely, if those children were natural born citizens, they would not have needed those civil or political laws to seal their citizenship fate. We have seen Congress since 1795 (it repealed the Naturalization Act of 1790) constantly change its naturalization Acts which it applied to children born out of the United States to U.S. citizen parents and to alien parents. On the other hand, Congress has never sought to change the meaning of a natural born citizen, not even through the Fourteenth Amendment. Hence, Warren has this wrong, too.

Art, I also read Warren's full article. He makes many points with which I disagree. I could go on much further and as you can see from the little that I have written above, it could get much worse for Warren if I did.

ajtelles said...

Dittos...

Mario,

Here is an example from Norred's article on his blog (the url is posted earlier) of a conclusion that sounds erudite, but, something's missing:

"In fact, after a long and torturous examination
"of every instance of the word "naturalization" and "natural-born"
"(with and without the hyphen),
"I can state that I could not find any limiting language
"in any Founding Era documentation
"that clearly supports or argues against the idea that
"Congress can define "natural-born citizen" any way it wishes."

Norred could not find "limiting language" so, what, anything goes?

And since there is no "limiting language" Congress can redefine the original genesis original intent of original birther John Jay and his reason, only four years after he was a signatory to the 1783 Treaty of Paris, his reason for underlining the word "born" in "natural born Citizen" (implying ONLY singular U.S. citizenship -- NOT dual U.S./foreign citizenship) in his note to his long-time friend original birther George Washington, a meaning that was accepted without debate by the original birther framers and original birther ratifiers?

Mario, it seems to me that the dual U.S./foreign citizenship aficionados don't really have a coherent and cogent argument against ONLY singular U.S. citizenship as being the obvious meaning of "born" in "natural born Citizen."

Art
Original-Genesis-Original-Intent.blogspot.com

Mario Apuzzo, Esq. said...

I of II

Art,

Attorney Warren Norred proclaims: "I can state that I could not find any limiting language in any Founding Era documentation that clearly supports or argues against the idea that Congress can define ‘natural-born citizen’ any way it wishes." Mr. Norred takes the typical Obama and Cruz supporter approach to defining a natural born citizen, i.e., if we cannot figure out what the Framers told us it means (they do not try very hard to find out or if they do, they do so dishonesty), we can make it mean anything we want. They constitutionalize and thereby legitimize their approach by calling it “the living Constitution.”

Mr. Norred misses, apart from the historical record and case law from the U.S. Supreme Court, the elephant in the room, the text and structure of the Constitution. The text of our Constitution established a central government of limited powers. That government has only the powers the Constitution gives to it, express or implied, with all those that are not given reserved to the states and the people. The Constitution did not give Congress any express or implied power to define a natural born. With respect to Congress’s power over citizenship, it says only one thing: “The Congress shall have power “[t]o establish an uniform Rule of Naturalization . . . throughout the United States.” Warren conveniently dismisses this text out of hand. On the contrary, this “naturalization” power can be interpreted to apply only to anyone who needs naturalization. And who could that be? This power could extend only over persons who were not natural born citizens, for anyone who was not a natural born citizen needed naturalization. A natural born citizen was a child born in a country to parents who were its citizens at the time of the child’s birth. So, that child did not need naturalization.

The structure of the Constitution also demonstrates Mr. Norred to be wrong. If the Framers would have wanted Congress to have the power to define a natural born citizen they would have told us as they did through Article I, Section 8, Clause 10 that Congress had the power “t]o define . . . Piracies and Felonies committed on the High Seas, and Offences against the Law of Nations.” The clause “natural born citizen” already had a definition at common law and so there was no need for Congress to define it. Minor. In fact, there is no recorded debate either in the Constitutional Convention or any of the state ratifying conventions on the meaning of a natural born citizen. Hence, there must have been common understanding among the people as to what it meant. Nor did the Framers want Congress to define a natural born citizen, for they did not trust Congress to select who shall be President and Commander in Chief, which is the reason that they took away from Congress the power to select the President and rather gave it to the people but only through the Electoral College.

Continued . . .

Mario Apuzzo, Esq. said...

II of II

The historical record shows that Mr. Norred is mistaken. It demonstrates, among other things, that James Madison in Federalist No. 42 did not complain about how the states were making persons natural born citizens. Rather, he complained about how the states each had their own rules for naturalizing people to be state citizens. It was uniformity and certainty with U.S. citizenship that Madison wanted. Hence, he saw the need for a uniform rule of naturalization throughout the United States and for the nation to have one uniform rule for defining the “natural born citizens” of the United States and the “citizens” of the United States. Surely, while the definition of a citizen of the U.S. could change given the needs of the nation, the definition of a natural born citizen could not.

Case law of our U.S. Supreme Court also shows that Mr. Norred is in error. Minor v. Happersett (1875) told us what the Framing period common understanding of the meaning of a natural born citizenw was. It expressed nicely who the natural born citizens were and what people were in need of naturalization when it simply and plainly said: “At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners.” Id. at 167. Indeed, there was no doubt those children born in the country to parents who were its citizens were not only citizens like their parents, but also “natives, or natural born citizens.” See Vattel, Section 212 (provides the same nomenclature and definition when he said: “The natives, or natural-born citizens, are those born in the country, of parents who are citizens.”). Minor also explained that under that common law, all other persons were “aliens or foreigners,” and how those people could be naturalized. Through this explanation, Minor exhausted all persons who could be natural born citizens, i.e., only those born in the country to citizen parents could be. Hence, Minor confirmed that the only persons needing naturalization were persons not born in the country to citizen parents. And it is these people who would become the object of Congress’s naturalization powers, not the natural born citizens. And it is these people that Congress, since 1790, has acted upon with its naturalization Acts, thus confirming as early as 1790 who the natural born citizens were and what the common understanding of the meaning of that clause was.

Congress’s naturalization power did not nor does it extend over any person born in the U.S., who becomes automatically a citizen from the moment of birth. Historically, one had to satisfy the common law to be a citizen at birth by birth in the country and only if also born to citizen parents could one gain that status. These were the “natives, or natural-born citizens.” The Fourteenth Amendment extended the right of citizenship at birth by birth in the country to anyone born in the United States while subject to its jurisdiction (under Wong Kim Ark meaning also born to alien parents who are domiciled and permanently residing in the United States and neither foreign diplomats nor military invaders). Under the very text and intent of the Fourteenth Amendment and Wong Kim Ark, these are “citizens” of the United States at birth and not to be conflated, confounded, and confused with the common law natural born citizens. Even today, because of the Fourteenth Amendment, Congress cannot through its naturalization power or any other power deny to any person born in the United States while subject to its jurisdiction the right to be a “citizen” of the United States at birth. U.S. v. Wong Kim Ark (1898). And it surely could not deny that right to any natural born citizen.

There is more that I can say which demonstrates so much more of what Mr. Norred wrote in his article to be wrong, but will leave it here for now.

Kanbun said...

Mario,
I continue to be curious why there has never been a single mainstream media type or so-called legal expert that refers to Minor in defining NBC. Your references, and a plain layman's reading of the case citation, seems so straightforward to me. Is it because these experts (would argue) believe that this is dicta and not precedent (I certainly can't tell)? To me, precedent or not it doesn't matter - the court clearly expressed an opinion that should have value in this discussion.

The lack of substantive justification or backup to these various arguments made by these experts makes the media's attention to only the spin all the more perplexing. Wouldn't you think that there would be one credible pundit that would at least have the sense to suggest that Minor has some import?

ajtelles said...

This sounds familiar...

Mario,

Harvard Prof. Einer Elhague's short but succinct article at Salon.com linked to below sounds familiar, and remind me of your comments about originalism, textualism and "at birth" in your current article, although his emphasis is not on "at" birth but its implication--see paragraph #3 below.

Compared to Mr. Warren Norred's article on his blog in which he says that the Congress can define "natural born Citizen" any way it wants, Prof. Elhague's comments are definitely erudite and are like a breath of fresh air.

>> http://www.salon.com/2016/01/20/ted_cruz_is_not_eligible_to_run_for_president_a_harvard_law_professor_close_reads_the_constitution/

Ted Cruz is not eligible to run for president:
A Harvard Law professor close-reads the Constitution


"The closer you study the Constitution, the weaker Ted Cruz's case squares with the actual meaning of "natural-born" "

Einer Elhauge

Wednesday, Jan 20, 2016 02:37 PM PST

"Einer Elhauge is the Petrie Professor of Law at Harvard Law School and Founding Director of the Petrie-Flom Center for Health Law Policy, Biotechnology and Bioethics."

Here are four paragraphs from his Salon article.

~ ~ ~ ~ ~

"The U.S. statute in 1790 provided that “children of citizens of the United States” that are born abroad “shall be considered as natural born Citizens.”  This has been thought the strongest evidence for Cruz’s position since so many 1790 congressmen had participated in the Constitutional Convention.  However, this statute did not say these children were natural-born citizens.  It instead carefully said they “shall be considered as” natural-born citizens, suggesting that Congress thought they were not natural-born citizens but should be treated as such.  Indeed, there would have been no need to pass the statute if they were already understood to be natural-born citizens.

"Further, when this Act was reconsidered in a few years, Madison himself pointed out that Congress only had constitutional authority to naturalize aliens, not U.S. citizens, and reported a bill that amended the statute to eliminate the words “natural born” and simply state that “the children of citizens of the United States” born abroad “shall be considered as citizens.”   This indicates that Madison’s view was that children born abroad of U.S. citizens were naturally aliens, rather than natural born citizens, and thus could be naturalized by Congressional statute but should not be called “natural born.”  Congress adopted this amendment in 1795.

"The contrary position also has two difficulties. It defines a “natural-born citizen” to mean anyone who Congress has defined to be a citizen at birth; that is, anyone born a citizen.  This effectively reads the word “natural” out of “natural born citizen.”  It also means Congress can by statute change the constitutional limit on who can run for president, when the whole point of constitutional limits is typically that Congress cannot change them.

"In short, both textualism and originalism cut strongly against Cruz being a natural-born citizen.  Some argue that living theories of constitutional interpretation cut in favor of Cruz, but even living theories start with text and history, and it is not clear why the principle animating the clause would merit a different conclusion in current times.  Presumably modern equal protection norms would bar a sexist rule that said children born abroad with one U.S. parent were natural born only if that parent were a man.  But that is no argument against the interpretation that persons are natural born citizens only if born in a U.S. territory or to a parent serving the U.S. abroad.

Art
Original-Genesis-Original-Intent.blogspot.com

Mario Apuzzo, Esq. said...

Kanbun,

People can read Minor for themselves and decide for themselves what it is saying. That counts more than all the spin of the "experts."

Robert Pilchman said...


Just to add to Kanbun: How much hope is there for an honest and competent result via the judiciary? Indeed, many believe that U.S. Supreme Court Justice Scalia may have just been murdered!!! If Justice Scalia wasn't even apparently given an autopsy despite a report that he was found with a pillow over his head ... then why shouldn't we be skeptical about our hopes via the government?

ajtelles said...

A Bright Light at Harvard...

Mario,

I'll try this again.

Harvard Prof. Einer Elhague's has a short and succinct article at Salon.com that reads like something you could have written. What Prof. Elhague wrote sure sounds like he's reading your blog, although he wrote his Salon article before you posted your article here, The Illinois Board of Elections Got It Wrong: Ted Cruz Is Not a Natural Born Citizen.. What he wrote about originalism, textualism and "at birth" is like a breath of fresh air coming from Harvard University. His emphasis is on the implication of "at" birth and not on "at" birth vs. "by" birth as you articulated so well in this article.

"Einer Elhauge is the Petrie Professor of Law at Harvard Law School and Founding Director of the Petrie-Flom Center for Health Law Policy, Biotechnology and Bioethics."

>> http://www.salon.com/2016/01/20/ted_cruz_is_not_eligible_to_run_for_president_a_harvard_law_professor_close_reads_the_constitution/

Ted Cruz is not eligible to run for president:
A Harvard Law professor close-reads the Constitution


"The closer you study the Constitution, the weaker Ted Cruz's case squares with the actual meaning of "natural-born" "

This is part of paragraph #8 of Prof. Elhague's article:

"The contrary position also has two difficulties.
"It defines a “natural-born citizen” to mean
"anyone who Congress has defined to be a citizen at birth;
"that is, anyone born a citizen.
"This effectively reads the word “natural” out of “natural born citizen.”


It sure would be nice if Prof. Elhague could influence his fellow professors Laurence Tribe and Alan Dershowitz regarding their "living theories of constitutional interpretation" as he mentioned in paragraph #9:

"In short, both textualism and originalism
"cut strongly against Cruz being a natural-born citizen.
"Some argue that living theories of constitutional interpretation cut in favor of Cruz,
"but even living theories start with text and history, ..."


Compared to Mr. Warren Norred's article on his blog in which he says that the Congress can define "natural born Citizen" any way it wants, Prof. Elhague's comments are definitely erudite and are like a breath of fresh air coming from a Professor of Law at Harvard University.

Art
Original-Genesis-Original-Intent.blogspot.com

Robert Pilchman said...


Just to follow up on my comment of "February 16, 2016 at 5:34 PM":

http://www.cbsnews.com/news/supreme-court-justice-antonin-scalia-death-conspiracy-theories-texas-ranch-owner-clarifies/ ; https://www.youtube.com/watch?v=RyWrp9kLIyY ( http://www.wtsp.com/story/news/2016/02/17/ranch-owner-clarifies-how-he-found-scalias-body/80495122/ ) "The ranch owner, John Poindexter, later tried to clarify his comments, telling "CBS This Morning" Scalia had a pillow over his head, not over his face as some have been saying. The pillow was against the headboard." (Notice: Donald Trump apparently commented about it on two radio talk shows.) Question: If this is simply a misunderstanding (i.e. the pillow was not in contact with his body) then what is the likelihood that the ranch owner would mention anything about the pillow when commenting about the death of Justice Scalia??? Also did Justice Scalia usually sleep/rest in bed without resting his head on a pillow??? Also how long did it take for the owner to attempt to "clarify"??? Speaking of Trump, he apparently is continuing to threaten to sue Ted Cruz [about his ineligibility] [but still hasn't actually filed]

Robert Pilchman said...


Unfortunately, with the passing (homicide (???)) of Justice Scalia, I doubt that there would be a majority opinion interpreting natural born Citizen in accordance with the original meaning (Vattel). BY THE WAY, A DECISION THAT WOULD DECIDE NATURAL BORN CITIZEN IN ACCORDANCE WITH VATTEL WOULD SEEM TO INVALIDATE THE OBAMA PRESIDENCY AND ALL HIS LEGISLATION AND JUDICIAL APPOINTMENTS - TALK ABOUT A POTENTIAL MOTIVATION IN THE SCALIA DEATH. GIVEN THE CURRENT POSSIBILITY OF A LAWSUIT BY ONE PRESIDENTIAL CANDIDATE AGAINST ANOTHER PRESIDENTIAL CANDIDATE THE POWERS THAT BE MAY BE CONCERNED THAT THERE IS A SERIOUS POSSIBILITY FOR SUCH A LAWSUIT TO SOON REACH THE U.S. SUPREME COURT.

leo derosia said...

I do not know if scalia died a natural death but I do know that the courts, including the supreme court, are a farce after reading minor back in 2012. Scalia should not have attended the fake inaugurals and should've pointed out in public or in sc opinions that obama has no right to do anything as President because he is not a natural born citizen. The lack of character, honesty and real patriotism is appalling in dc. Cruz and Andrew Napolitano talking about trumps lawsuit, if he does it, being frivolous is a flat out lie. I have called obama President and I never will, that is reserved for real CiCs like Presidents Washington and Lincoln

Robert Pilchman said...


It’s an interesting question, if in the upcoming year, the U.S. Supreme Court would issue a 4-4 decision (and the Obama U.S. Supreme Court appointees would not recuse themselves) (or if the U.S. Supreme Court would issue a 3-3 decision (and the Obama U.S. Supreme Court appointees would recuse themselves)) regarding natural born Citizen and there would be different Circuits issuing different opinions regarding the meaning of natural born Ciizen …

Also, would Cruz/Rubio appoint justices to the U.S. Supreme Court like Scalia when a majority of such justices would most probably him find him ineligible for the presidency? (Note: Even if the Rubio/Cruz U.S. Supreme Court appointees would recuse themselves it still could lead to the invalidation of a Rubio/Cruz presidency.)

In any event, I’m glad to see that Trump may now be going after both Rubio and Cruz (as not being natural born Citizens) based on https://twitter.com/realDonaldTrump/status/701045567783219201 (""@ResisTyr: Mr.Trump...BOTH Cruz AND Rubio are ineligible to be POTUS! It's a SLAM DUNK CASE!! Check it! http://powderedwigsociety.com/eligibility-of-cruz-and-rubio/ …""). However, Trump still has apparently NOT initiated any actual litigation …

Also, in any event, we should contact our Senators to discourage approving any more Obama nominations for SCOTUS. Besides any invalid nature of such an appointment, our rights such as the first amendment, second amendment, etc. are on the verge of being usurped!!!

Robert Pilchman said...


Donald Trump was asked about his retweet ( https://twitter.com/realDonaldTrump/status/701045567783219201 ) regarding the ineligibility of both Cruz and Rubio (--- by George Stephanopoulos approximately 1:30 of https://youtu.be/R9GkFo1Kfno ("Donald Trump on His South Carolina Primary Win, the GOP, and the Cruz Campaign Tactics")) ( http://redstatewatcher.com/article.asp?id=7663 ).

Robert Pilchman said...


https://cdrkerchner.wordpress.com/2016/02/21/constitutional-eligibility-challenges-to-cruz-rubio-and-other-candidacies-to-be-heard-on-tuesday-in-ny/ "Constitutional Eligibility Challenges to Cruz, Rubio, and Other Candidacies to be Heard on Tuesday in NY " ---> http://www.thepostemail.com/2016/02/21/eligibility-challenges-to-cruz-rubio-jindal-candidacies-to-be-heard-on-tuesday-in-new-york/ - "Eligibility Challenges to Cruz, Rubio, Jindal Candidacies to be Heard on Tuesday in New York" ---> http://blog.timesunion.com/capitol/archives/246279/state-boe-receives-flurry-of-natural-born-objections-to-rubio-cruz/ - "State BOE receives flurry of ‘natural-born’ objections to Rubio, Cruz"

Squeeky said...

Oh Gee, Mario Apuzzo, Esq.!!! Are you STILL pushing the two citizen parent nonsense??? I would thought by now that I had finally educated you on this.

Artsy Fartsy Squeeky Fromm
Girl Reporter

Mario Apuzzo, Esq. said...

Squeeky,

Is that supposed to be some in for you to start embarrassing yourself again with your artsy farsty theories on what a natural born citizen is?

Pogue said...

Don't you know the two citizen parent theory only applies to people Mario doesn't like. But if you're born out of wedlock two citizen parents don't matter in Mario's world.

Mario Apuzzo, Esq. said...

Pogue,

You are as bad as Squeeky, thinking that you actually said anything.

Ilíon said...

Mr Apuzzo,
You name was recently mentioned to me as a resource on the question of natural born citizenship, and I must say: thank you for all the reasoning you have put into this.

Myself, I'm not a lawyer, but I am a reasonably intelligent person with what passes these days for a normal education (*) ... and on my own I had already come to almost the precise conclusions you detail here.

On what small bit of differences there are between my conclusions and yours, you have given me *reasons* to reconsider.

(*) and, to slightly overcome the particular handicap of my normal education, I have always been brutally logical/rational, even as a child.

Ilíon said...

Progue: "Don't you know the two citizen parent theory only applies to people Mario doesn't like. But if you're born out of wedlock two citizen parents don't matter in Mario's world."

I wonder if Progue knows -- and, more importantly, cares -- that the citizenship of a bastard born overseas to a US citizen woman and a non-citizen man is treated differently in statute law than the citizenship of a bastard born overseas to a US citizen man and a non-citizen woman?